Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service
[2020] QIRC 49
•3 April 2020 25 February 2019 18 April 2019 26 April 2019 10 May 2019 14 May 2019 4 June 2019 5 June 2019 6 June 2019 2 October 2019
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION:
Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service [2020] QIRC 049
PARTIES:
Queensland Nurses and Midwives' Union of Employees
(Applicant)v
West Moreton Hospital and Health Service
(First Respondent)CASE NO:
GP/2018/29 and GP/2019/3
PROCEEDING:
General Protections
DELIVERED ON:
HEARING DATES:
3 April 2020
25 February 2019
18 April 2019
26 April 2019
10 May 2019
14 May 2019
4 June 2019
5 June 2019
6 June 2019
2 October 2019MEMBER: Black IC HEARD AT:
Brisbane
ORDER:
1. Application dismissed.
2. Order for suppression of particular exhibits.
CATCHWORDS: INDUSTRIAL RELATIONS ACT 2016 – General Protections – whether workplace right exercised –whether commencement of investigations constitutes adverse action – whether suspension on full pay and a placement on alternative duties constitutes adverse action – whether the exemption provided in s 282(6) of the IR Act applies to decisions made under sections 137 and 187 of the PS Act, and Part 9 of the Hospital and Health Boards Act 2011–whether a collaborative decision making process involved. LEGISLATION:
CASES:
Industrial Relations Act 2016 (Qld) s 280, s 282, s 284, s 285, s 290, s 291, s 305, s 306, s 314.
Public Service Act 2008 s 3, s 137, s 187, s 188.
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Another v Visy Packaging Pty Ltd and Others (No 3) [2013] FCA 525
Board of Bendigo Regional Institute of Technical and Further Education and Advancement v Barclay [2012] HCA 32
Bowling v General Motors-Holden Pty Ltd [1980] FCA 176.ommonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329
Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 32
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation (Australian Industrial Relations Commission, Vice President Lawler, 2 July 2003)
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131
Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046
Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462
Darlington v State of Queensland (Queensland Police Service) [2016] ICQ 020
Foster v Secretary to the Department of Education and Early Childhood Development (Vic) [2008] VSC 504
Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22
Kimpton v Minister for Education of Victoria (1996) 65 IR 317
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Police Federation of Australia v Nixon (2008) 168 FCR 340
Schipp & Anor v The Star Entertainment Qld Limited [2019] ICQ 009
Shea v TRUenergy FCA (2014) IR 242
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271Wayne Douglas Blair v Australian Motor Industries Limited [1982] FCA 143
APPEARANCES: Mr L S Reidy of Counsel, directly instructed, for the applicant.
C Murdoch QC and Mr J C Dwyer of Counsel, instructed by McCullough Robertson Lawyers, for the respondents.Decision
The Applications
[1]The Queensland Nurses & Midwives' Union of Employees (QNMU) lodged an application on 10 December 2018 pursuant to the general protections provisions of the Industrial Relations Act2016 (IR Act). The application relates to actions taken against Ms Tanja Mattner by her employer, the West Moreton Hospital and Health Service (the health service). A subsequent application was filed on 26 February 2019.
[2]In its initial application (GP 2018/29), the QNMU applied for orders against the health service. In its subsequent application (GP 2019/3), the QNMU also sought orders against three individual respondents, Ms Finley, Ms Giles, and Ms Curtis. Ms Finley is the Director of Operations or Nursing Director for the Prison Health Service; Ms Giles is the Acting Executive Director Mental Health and Specialised Services for the health service; Ms Curtis was at various times the Acting Executive Director Mental Health and Specialised Services and the Executive Director Mental Health and Specialised Services for the health service.
[3]The QNMU requested that both applications be joined. The respondents did not oppose the joinder and a decision to join matter GP 2018/29 with matter GP 2019/3 was made on 26 April 2019.
[4]An application amending matter GP 2018/29 was filed by the QNMU on 25 February 2019. The respondent did not object to the amendments being made. The amended application alleged that the health service took unlawful adverse action against Ms Mattner in contravention of sections 285 and 291 of the IR Act. The amended application identified 19 instances of alleged unlawful adverse action and sought a range of orders and injunctions.
Witness evidence
[5]A considerable number of affidavits were filed during the course of the proceedings. In addition, oral testimony was provided by the following:
For the respondents:
·Bretine Curtis in the interlocutory matter
·Bretine Curtis in the substantive matter
·Evelyn Dwyer
·Michelle Giles
·Sarah Hesse
·Robyn Henderson
·Cara-Lee Bradley
·Yvonne Prince
·Marie Finley
For the applicant:
·Tanja Mattner
·Vonnie Semple
Affidavit evidence
[6]The following affidavits were filed in in the proceedings either at the interlocutory stage or in relation to the substantive hearing:
For the applicant:
Affidavit
Date Tanja Mattner 10 December 2018 Tanja Mattner 18 April 2019 Tanja Mattner 17 May 2019 Tanja Mattner 3 June 2019 Veronica Therese Semple 25 Feb 2019 Veronica Therese Semple 26 Feb 2019 Veronica Therese Semple 20 March 2019 Veronica Therese Semple 15 April 2019 Veronica Therese Semple 23 April 2019 Veronica Therese Semple 9 May 2019 Teresa Chase 10 Dec 2018 Sally Anne Higgs 16 April 2019 Rachael Ashley-Butler 16 April 2019 Kim Harris 17 May 2019 Sally Gill 17 May 2019 Helen Cosic 17 May 2019
[7]For the respondents:
Affidavit
Date Yolanda Suarez 16 April 2019 Yolanda Suarez (unredacted version) 18 April 2019 Yvonne Prince 13 December 2019 Yvonne Prince 4 March 2019 Yvonne Prince (unredacted version) 15 April 2019 Yvonne Prince (redacted version) 16 April 2019 Yvonne Prince 24 April 2019 Yvonne Prince 20 May 2019 Bretine Curtis 18 April 2019 Bretine Curtis 24 April 2019 Suzanna Trayling 24 April 2019 Suzanna Trayling 17 May 2019 Dr Robyn Henderson 24 April 2019 Dr Robyn Henderson 31 May 2019 Cara-Lee Bradley 8 May 2019 Cara-Lee Bradley 24 May 2019 Michelle Giles 21 May 2019 Kirsty Lee Koch 21 May 2019 Evelyn Dwyer 17 May 2019 Sarah Hesse 31 May 2019 Lauren Griffin 31 May 2019 Maree Finley 31 May 2019 Legislation
[8]The relevant parts of the relevant sections of the IR Act are reproduced hereunder:
280 Action to which this part applies
Subject to section 281, this part applies to the following action—
(a)action taken by an employer;
(b)action that affects, is capable of affecting or is taken with intent to affect the activities, relationships or business of an employer;
(c)action that consists of advising, encouraging or inciting, or action taken with intent to coerce, an employer—
(i) to take, or not take, particular action in relation to another person; or
(ii) to threaten to take, or not take, particular action in relation to another person.
…
282 Meaning of adverse action
(1)Adverse action is taken by an employer against an employee if the
employer—
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
…
(5) Adverse action includes—
(a) threatening to take action covered by subsections (1) to (4); and
(b) organising to take action covered by subsections (1) to (4).
(6) Adverse action does not include action that is authorised under—
(a) this Act or any other law of the State; or
(b) a law of the Commonwealth.
…
284 Meaning of workplace right
(1)A person has a workplace right if the person—
(a) has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
(b) is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
(c) is able to make a complaint or inquiry—
(i)to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
(ii)if the person is an employee—in relation to his or her employment.
(2)In this section—
industrial body means—
(a) the commission; or
(b) the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission's functions and powers.
285 Protection
A person must not take adverse action against another person—
(a) because the other person—
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
…
291 Protection
(1)A person must not take adverse action against another person because the other person —
(a) is or is not, or was or was not, an officer or member of an industrial association; or
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of section 290(a) or (b); or
(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of section 290 (c) to (f).
This section is a civil penalty provision.
[9]The QNMU alleged that the respondents had contravened s 285 and s 291 of the IR Act in that they had taken adverse action against Ms Mattner for exercising a workplace right and taking part in industrial activities.
[10]Under the legislative scheme, to establish a breach of s 285 or s 291 of the IR Act, the following three elements need to be satisfied:
(i)That Ms Mattner had exercised a workplace right or engaged in an industrial activity;
(ii)That there has been adverse action; and
(iii)That the adverse action was taken because Ms Mattner had exercised a workplace right or engaged in an industrial activity.
[11]It is for the applicant to prove that a workplace right has been exercised, industrial activity had been engaged in, and that there is evidence of adverse action. If these preconditions have been satisfied then, pursuant to s 306 of the IR Act, it is for the respondents to prove that the adverse action taken was not taken for a prohibited reason.
Statutory presumption
[12]Section 306 of the IR Act provides:
306 Reason for action to be presumed unless proved otherwise
(1) Subsection (2) applies if—
(a) in an application in relation to a contravention of a provision of this part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would be a contravention of the provision.
(2)It is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(3)Subsection (2) does not apply in relation to orders for an interim injunction.
[13]Given that s 306 of the IR Act is in materially the same terms as s 361 of the Fair Work Act (FW Act), and in circumstances where s 361 of the Commonwealth legislation has been subject to considerable judicial attention, it is accepted that relevant principles are to be found principally by reference to decisions handed down in the Commonwealth jurisdiction. Section 361 of the FW Act, in its relevant parts, is set out below:
361 Reason for action to be presumed unless proved otherwise
(1)If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2)Subsection (1) does not apply in relation to orders for an interim injunction.
[14]The effect of the presumption set out in s 306 of the IR Act was explained by Gaudron J in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia:[1]
The only issue is whether [the action] was engaged in for a "prohibited reason" or for reasons including a "prohibited reason". Section 298V of the Act operates to create a presumption that it was. And it also operates to place the onus on those who contend otherwise to show that it was not.
[1] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 60.
[15]In this matter, the respondents argued that not all the preconditions had been satisfied. The respondents did not accept that Ms Mattner had exercised a workplace right, nor did they concede that adverse action had been taken against Ms Mattner.
[16]If a determination is made that the preconditions have been satisfied, then it is for the respondents to prove, on the balance of probabilities, that the adverse action was not taken for a prohibited reason or for reasons including a prohibited reason. Expressed differently, the s 306 presumption is only rebutted where there is sufficient evidence to support a positive finding to the effect that none of the operative reasons for the conduct was a prohibited reason.[2]
[2] Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329.
[17]In this regard, the fundamental inquiry to be made is why was the adverse action taken.
Matters in contention in substantive proceedings
[18]The parties accepted that the following matters require determination in these proceedings:
(a)Whether the despatch of an email by Ms Mattner on 8 October 2018 constituted the exercise of a workplace right;
(b)Whether the actions taken against Ms Mattner fall within the definition of "adverse action";
(c)If findings in favour of the applicant are made in respect to (a) and (b) above, whether the respondents took the adverse action identified because Ms Mattner had exercised a workplace right or had participated in industrial activities; and
(d)If findings are entered to the effect that the first respondent has contravened the IR Act, whether the natural person respondents were "involved in" the contraventions within the meaning of s 571 of the IR Act.
The applicant's case
[19]Given the denials expressed by the respondents, the applicant prosecuted a circumstantial case which was said to make it unlikely that the respondents could prove that adverse action was not taken for prohibited reasons. The applicant submitted that there was a strong circumstantial case that Ms Finley and Ms Bradley were actuated by prohibited reasons and that these reasons motivated them to be the prime movers in the misfortune that Ms Mattner suffered. The applicant also submitted that its case would be reinforced by findings of credit adverse to Ms Bradley, Ms Finley, Ms Dwyer and Ms Hesse.
[20]The applicant's submission was that the ultimate determination should not rest on any individual examination of issues, but rather be the product of a complete review which recognised a chain of behaviour in which a series of events should be considered as links in the chain which ultimately led to inexplicable and disproportionate responses being adopted by the respondents as events unfolded.
[21]It was submitted that prima facie evidence of contraventions of the Act were apparent from a narrative of events which disclosed a chronology in which Ms Mattner was faced with increasing hostility from the respondents because of her involvement in workplace issues and trade union activities. It was the applicant's case that the evidence around these events laid an evidentiary foundation of sufficient substance to support a conclusion that the respondents did take the adverse action because the applicant had exercised a workplace right or had participated in industrial activities.
[22]The applicant said that three separate events characterised the prohibited action. In the first event, Ms Bradley intervened to prejudice the applicant's standing by facilitating the introduction of complaints against the applicant during the Verifact investigation. This intervention occurred on 8 November 2018 and was motivated by a desire to retaliate against the applicant because the applicant had complained about NUM Reid on 8 October 2018 and which complaint had led to the commissioning of an external investigation into Ms Reid's behaviour and her removal from her normal work location.
[23]The second event involved Ms Finley's decision to refer a bundle of complaints against Ms Mattner to HR and the Verifact investigator on 22 November 2018. Except for the Polmeer complaint, all the complaints were old and had either not required action or had been resolved. Ms Polmeer's complaint should have been dealt with by NUM Dwyer and there was no valid reason for its distribution to Ms Bradley, Ms Finley and HR.
[24]The applicant submitted that there was no obvious or plausible reason for the decision to revive old complaints on 22 November 2018. Absent a credible or plausible reason, the most likely reason, and the true reason for acting on the complaints, was that Ms Finley was motivated by a prohibited reason. Ms Finley knew that Ms Mattner had complained on 8 October 2018 and she had become aware of Ms Mattner's participation in the 19 November 2018 QNMU meeting and knew that Ms Mattner had strongly advocated the escalation of industrial action.
[25]On the applicant's account, the decision to commence the Verifact Part B investigation turned on these two management interventions by Ms Bradley and Ms Finley. These interventions changed the course of an otherwise entirely benign process in terms of implications for Ms Mattner, into an inquiry into Ms Mattner's conduct and behaviour.
[26]The third event related to the manner in which the respondents responded to the pathology and VMO complaints made by Ms Hesse on 25 November 2018. The applicant submitted that the response to this complaint lacked integrity and that the process was manipulated by Ms Finley to ensure Ms Mattner was brought into further disrepute and to ensure Ms Mattner was moved out of Wolston Park. On the applicant's narrative, this was the final step in an escalating response by Ms Finley and Ms Bradley to harm Ms Mattner because of her involvement in workplace issues.
Findings
[27]The following findings are made on the evidence and for the reasons that follow:
Did Ms Mattner exercise a workplace right?
·Ms Mattner exercised a workplace right in complaining about Ms Reid's conduct and behaviour on 8 October 2018; in participating in a QNMU branch meeting on 19 November 2018; and in participating in the Minister's meeting on 21 November 2018.
Was adverse action taken?
·Adverse action was taken in the commencement of a show cause disciplinary process on 19 December 2018 in relation to the 25 November 2018 Hesse allegations;
·There is a significant doubt that the commencement of the Part B Verifact process constituted adverse action. Nothing more has happened other than that Ms Mattner has been asked to respond to specified allegations. Ms Mattner has yet to respond to the allegations and it is not known whether any of the allegations will be substantiated. It is questionable that Ms Mattner's security in employment has been reduced in a context where some complaints have been made against Ms Mattner, and where the health service has determined that the complaints should be investigated by an external party;
·In the event that I may be wrong about my conclusion that the decision to ask Verifact to investigate allegations against Ms Mattner did not amount to adverse action, I have elected to proceed, in the determination of the application, on the basis that the commencement of the Part B investigation did constitute adverse action;
·Adverse action has not been taken in decisions of the respondents to suspend and transfer Ms Mattner pursuant to s 137 of the PS Act.
Who made the decisions to take adverse action?
·The decisions to take adverse action were the product of a collaborative decision-making process. Ms Trayling, Ms Prince, Dr Henderson, Ms Curtis, Ms Bradley and Ms Finley all made contributions to the decision-making process;
·All the decision makers were familiar with the underpinning factual matrix and the justification for the taking of adverse action was anchored to this factual matrix;
·Neither Ms Bradley nor Ms Finley made a disproportionate contribution to the decision-making process;
·Both Ms Bradley and Ms Finley acted on the advice of HR in supporting decisions to take adverse action;
·HR played the pivotal role in the determination of responses to the Hesse and Verifact allegations;
·A dispersed decision-making process, on the facts and circumstances of this case, makes it unlikely that the decisions to take adverse action were motivated by prohibited reasons.
Did the decision makers know that Ms Mattner had exercised a workplace right and had participated in industrial activities?
·Neither Ms Trayling, Ms Prince, Dr Henderson nor Ms Curtis knew, at the relevant times, that Ms Mattner had made a complaint against Ms Reid, or that Ms Mattner had attended union meetings on 19 November 2018 and 21 November 2018;
·Ms Bradley and Ms Finley knew that Ms Mattner had exercised a workplace right on 8 October 2018;
·Neither Ms Finley nor Ms Bradley knew at the relevant times that Ms Mattner had attended union meetings on 19 November 2018 and 21 November 2018.
Was the adverse action taken because Ms Mattner exercised a workplace right on 8 October 2018 or because Ms Mattner participated in industrial activities on 19 and 21 November 2018?
·There was no serious suggestion made by the applicant that Ms Prince, Ms Trayling, Ms Curtis or Dr Henderson were motivated by a prohibited reason in their contributions to the decision-making process. None of these decision makers knew that Ms Mattner had exercised a workplace right or had participated in industrial activities.
·The evidence is insufficient to establish any causal connection between the exercise of a workplace right on 8 October 2018 and decisions taken by the respondents to take adverse action.
·While Ms Bradley may have known that nurse practitioners would make complaints to Ms Suarez in their Verifact interviews, her decision to allow nurse practitioners to complain was not causally associated with the exercise of a workplace right by Ms Mattner on 8 October 2018.
·Any determinative role held by Ms Bradley had most likely ended before Ms Mattner participated in industrial activities. She had some responsibility for events when she relieved Ms Dwyer for the week commencing 26 November 2018, but at this point the management of Ms Mattner's conduct and behaviour had become a collaborative exercise in which HR was the principal player.
·The substantial and operative reason for Ms Finley's decision on 22 November 2018 to refer complaints to Ms Prince, was Ms Finley's understanding that the complaints made against Ms Mattner needed to be acted on by management. Nor do I accept that Ms Finley was the determinative player following her referral of the pathology form allegation to Ms Prince and Ms Trayling. HR was the determinative player and Ms Finley acted on their advice. Whatever the extent or nature of Ms Finley's contribution after 25 November 2018, her contribution was not motivated by prohibited reasons.
Workplace right
[28]The applicant said that Ms Mattner exercised a workplace right when she despatched an email on 8 October 2018 in which she drew attention to a workplace incident which she said distressed many staff, and requested that management convene an urgent meeting to address a number of serious issues. The respondents did not accept that the applicant exercised a workplace right in despatching the 8 October 2018 email.
Industrial activities
[29]The applicant submitted that Ms Mattner engaged in an industrial activity when she participated in a QNMU meeting on 19 November 2018 and when she attended a meeting with the Minister at the Brisbane Correctional Centre on 21 November 2018. The Minister convened the meeting for the purpose of hearing from nurse representatives about workplace issues.
[30]On 19 November 2018, Ms Mattner participated in a QNMU Branch Meeting which was conducted by teleconference. In her 10 December 2018 affidavit, Ms Mattner said that during the meeting she had been outspoken about workloads, staffing, fatigue management and safety issues at Wolston Park. She said that she very strongly expressed her belief that management must be held accountable for the staffing situation in the Prison Health Services. Ms Mattner said that members, including herself, resolved that a low priority task list be developed and sent to management.
[31]Ms Semple said that she had participated in the branch meeting. She confirmed that Ms Mattner had expressed strong views about management accountability, had suggested a stop work meeting at a time when it would have the most impact, and supported the resolution about a low priority task list.
[32]On 21 November 2018, Ms Mattner attended a meeting with the Health Minister at the Brisbane Correctional Centre. The next day, Ms Mattner said that she, and other nurses, received a direction from Nurse Unit Manager Dwyer to the effect that they were not to attend other centres on their days off, or at any other time, to hold meetings to discuss work related issues.
[33]In her affidavit dated 10 December 2018, Ms Chase said that during the branch meeting and the meeting with the Minister, Ms Mattner "made complaints about the failure of management to address ongoing workloads, staffing, fatigue management and safety issues".
[34]It was not in dispute that the applicant's participation in the QNMU Branch Meeting on 19 November 2018, and her participation in the meeting convened by the Minister at the Brisbane Correctional Centre on 21 November 2018, constituted industrial activities pursuant to s 290 of the IR Act.
Was a workplace right exercised?
[35]Ms Mattner's 8 October 2018 email was sent at 1.50 pm to both Ms Bradley and Ms Finley. In the email Ms Mattner requested an urgent meeting with Ms Bradley and the "nursing staff at Wolston". She referred to morale and mood and referenced a "display in the health centre" which involved Nurse Unit Manager Reid and Ms Ashley-Butler. Ms Mattner said that the nursing staff who witnessed the event "were all deeply affected". She said that the matter was a serious issue which required urgent attention. The email is reproduced hereunder:
Hi Cara
I am not quite sure if Marie has gone on leave yet. I would like to request an urgent meeting this week with you (and Marie if she is still available) and the nursing staff at Wolston. The morale and mood is such that it is affecting to (sic) centre – particularly after last Thursdays display in the health centre. The nursing staff that witnessed the events are all deeply affected, and this has unearthed many serious issues that require urgent attention. Wolston nursing staff would very much appreciate your guidance towards a speedy resolution.
[36]Ms Bradley replied to the email at 2.43 pm that day, thanked Ms Mattner for the email and said that she would discuss the email with Ms Finley and get back to the applicant. Ms Bradley did not ask any questions or seek any particulars about the matters in issue.
[37]When Ms Mattner acknowledged receipt of Ms Bradley's email at 4.08 pm on the same day, she asked for an explanation for why the rostering function had been taken off her. In this email, she said inter alia:
Apologies for going on about the roster, but I am being punished and I don’t know why? I have done the rosters for the past couple of years – and they were all given to Lore for sign off. I always did fair and equitable rostering, no favouritism, and all staff seemed happy with the rosters. I have been removed from the NUM folder on j:drive, and I no longer have access to the NUM office key. A conversation and some truth and transparency would be appreciated.
[38]In her affidavit, Ms Higgs said that in early October 2018 she had received complaints from members employed at Wolston Park about bullying and other behavioural issues involving Nurse Unit Manager, Lorraine Reid. Ms Higgs said that she spoke to Ms Bradley and Dr Henderson about the issue and told them that members were considering lodging a grievance in respect of Ms Reid's behaviour. She said that Dr Henderson told her that QNMU members would need to put complaints in writing before she would take any action.
[39]Ms Finley said in her affidavit that it was her recollection that in early October 2018 Ms Higgs had alerted Dr Henderson to "a number of issues at Wolston" and that "there was discussion amongst the nurses at Wolston to write a letter outlining their complaints".
[40]It is accepted that meetings with staff took place on 9 October 2018 and 10 October 2018. Ms Bradley, Ms Finley and Ms Koch met with staff on 9 October 2018, while on 10 October 2018 the meeting was attended by Dr Henderson, Ms Bradley, Ms Finley and, for part of the meeting, Ms Koch.
[41]In her 3 June 2019 affidavit, Ms Mattner said that she attended both meetings. She said that Ms Finley had convened the first meeting and that about five staff members, including herself, spoke a lot. Ms Mattner said that she spoke about the incident in the health club on 4 October 2018 and that she spoke about a range of other issues including bullying and threats relating to AHPRA registration. Ms Mattner said that at the second meeting, Dr Henderson did most of the talking for management. She also said that, at the second meeting, she repeated much of what she had said in the first meeting.
[42]Either during the 10 October 2018 meeting or soon thereafter, Dr Henderson informed staff that the concerns expressed would be investigated. Around the same time, Ms Reid was reassigned to a different work location for the duration of the investigation.
[43]On the evidence, only Ms Koch, Ms Bradley and Ms Finley knew about the 8 October 2018 email. In her oral testimony, Dr Henderson said that while she was part of the management response to staff concerns about Ms Reid, she was not aware that Ms Mattner was a complainant and that she did not know any of the staff that attended the meeting that she had addressed.[3] It was her understanding that staff were concerned that they may be at risk of losing their registration and that staff needed some reassurance around that issue:
Okay. And the – and – so you don’t know about what an – Verifact was instructed to do but you provided the funding for it, essentially?---So it seemed to me that – and this is my recollection – that there was some angst amongst staff and in my view that was in relation to, you know, suggestions by Lorry Reid that people could be reported inappropriately and lose their registration. That was my view and so in terms of supporting an investigation to understand more fully what the quantum of that was – that was why I supported the Verifact review. It – it provided natural justice for Lorry Reid but it also provided an opportunity or a platform for staff to actually be able to talk to whatever they needed to as well, objectively.[4]
[3] T2-24.
[4] T2-28.
[44]The effect of the applicant's submission was that Ms Mattner instigated the complaint against Ms Reid. It was her intervention following upon Ms Higgs discussions with Dr Henderson and Ms Bradley that led to the meetings convened by management on 9 and 10 October 2018. It was during these meetings that various complaints were aired about Ms Reid, and it was a result of these meetings that Dr Henderson undertook to commence an investigation in the behaviour and conduct of Ms Reid.
[45]The applicant relied on a decision of Justice Dodds-Streeton in Shea v TRUenergy[5] in which her Honour, in her summary of principal findings, described a "complaint" as:
… a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation.[6]
[5] Shea v TRUenergy FCA (2014) IR 242.
[6] Ibid.
[46]Justice Dodds-Streeton had developed her reasoning of what might constitute a complaint in another section of her judgment:
626 As held in Ratnayake, it is, in my view, unnecessary that the employee, in making a complaint that he or she is able to make, expressly identifies the communication as a complaint or grievance, or uses any particular form of words. It is necessary only that relevant communication, whatever its precise form, would be reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint.
627 Whether an employee has made a complaint is a matter of substance, not form, which should be determined in the light of all the relevant circumstances. It does not depend solely on the words used …
[47]The respondents did not accept that the email conveyed a grievance, a finding of fault, or an accusation. It was the respondents' submission that, on its face, the email does no more than request a meeting with Ms Bradley and Ms Finley. The submission was that a reading of the words used discloses that the email "was not a complaint about anything, and is not made pursuant to any entitlement or right".
[48]It was relevant in the respondents' perspective that the applicant never claimed that the email constituted a complaint pursuant to s 284 of the IR Act until the first day of the substantive proceedings on 5 June 2019. When the applicant's general protections application was filed on 10 December 2018, the adverse action was identified as the applicant's suspension and transfer and commencement of a disciplinary process against her. In the amended application filed on 25 February 2019, the adverse action was generally identified as the suspension and transfer and the commencement of investigations into Ms Mattner's conduct or behaviour.
[49]It may be open to conclude, on all the evidence that it was Ms Higgs, not the applicant, who had articulated and communicated the complaint about Ms Reid. It is not known on what basis Dr Henderson concluded that it was necessary for QNMU members to put complaints in writing before any action would be taken, but having communicated that requirement it is likely that the despatch of Ms Mattner's email was consequential.
[50]The contextual material makes it known that a complaint from staff in relation to Ms Reid would not have surprised either Ms Finley or Ms Bradley. Nor, given the very brief and limited information in her email, did Ms Mattner expect that it would be a surprise. The email was written in a context which reflected that all parties understood what was being conveyed.
[51]In my view it can safely be inferred from the evidence that Ms Bradley and Ms Finley understood that, in sending the email, Ms Mattner was completing the formality required by Dr Henderson.
[52]In doing what Dr Henderson requested, I am satisfied that the applicant has played a significant part in the complaint process which had been commenced on behalf of staff by Ms Higgs. In despatching the email, the applicant was confirming that staff wanted a resolution to an ongoing issue which she understood management were aware of, and in respect of which, management were expecting some form of complaint or communication.
[53]The evidence is sufficient to support a finding that Ms Mattner has exercised a workplace right pursuant to s 284 of the IR Act.
Adverse action
[54]Pursuant to s 282(1) of the IR Act, "adverse action" includes action taken by an employer against an employee which injures the employee in her employment or alters the position of the employee to the employee's prejudice.
[55]On my understanding of the applicant's submissions, the claimed adverse action can be defined as follows:
·The decision to commence an investigation into complaints made against Ms Mattner during the Verifact investigation into Ms Reid, and into complaints referred to HR by Ms Finley and Ms Dwyer on 22 November 2018;
·The decision to commence on 19 December 2018 a show cause disciplinary process in response to allegations about a pathology slip and VMO process;
·Decisions taken on 3 December 2018 and 19 December 2018 to suspend the applicant and place her on alternative duties at the Ipswich General Hospital.
[56]The applicant submitted that all three events injured Ms Mattner in her employment and altered her position to her prejudice. The respondents however did not accept that any of the actions identified by the applicant as "adverse action" could be so characterised because:
(i)The respondents were authorised by a law of the state, pursuant to s 282(6) of the IR Act, to take the action that they did;
(ii)Neither the Verifact Part B investigation, nor the show cause disciplinary process resulting from the pathology slip and VMO complaints, amounted to adverse action in that neither activity has injured the applicant in her employment or altered her position to her prejudice;
(iii)The relocation of the applicant to Ipswich did not result in any detriment or prejudice.
Were decisions claimed to constitute adverse action authorised by a law of the state?
[57]The "General protections" provisions of the IR Act are set out in Part 1 of Chapter 8. Section 278 of Division 1 (Introduction) identifies the purposes of Part 1 of Chapter 8, while s 279 of Division 1 includes definitions for Part 1. Section 279 provides that the definition of "adverse action" is to be found in s 282.
[58]Section 282 is included in Division 3 of Part 1. Division 3 deals with "Workplace rights". Division 4 of Part 1 deals with "Industrial activities". Sections 285 (Division 3) and 291 (Division 4) prohibit adverse action. The definition of "adverse action" for the purposes of Division 4 is also to be found in s 282. While the definition is included in Division 3, it applies to Division 4 by virtue of the operation of s 279. This construction is confirmed by a reading of the Explanatory Memorandum to the Industrial Relations Bill 2016 where it is said at page 54 that "clause 279 defines particular terms used in this part" (Part 1).
[59]Section 282 of the IR Act identifies the "Meaning of adverse action". Subsection (1) through to subsection (5) of the section identifies what constitutes adverse action, while subsections (6) and (7) exclude particular actions from the definition of adverse action.
[60]Section 282(6) of the IR Act provides that "adverse action" does not include action that is authorised under the IR Act or under any other law of the State.
[61]Section 282(1) of the IR Act provides, inter alia, that "adverse action" is taken by an employer against an employee if the employer "injures the employee in his or her employment" or "alters the position of the employee to the employee's prejudice". The relevant effect of s 285 and s 291 of the IR Act is that these sections prohibit an employer from taking adverse action because an employee has exercised a workplace right or has engaged in an industrial activity.
[62]The "purposes" of the general protections' provisions are set out in s 278 of the IR Act and include:
(1) The purposes of this part are as follows—
(a) to protect workplace rights;
(b) to protect freedom of association by ensuring that persons are—
(i) free to become, or not become, members of industrial associations; and
(ii) free to be represented, or not represented, by industrial associations; and
(iii) free to participate, or not participate, in lawful industrial activities;
(c) to provide protection from workplace discrimination;
(d)to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this part.
[63]The explanatory memorandum to the Industrial Relations Bill 2016, at page 54, comments on the purpose of Part 1 as follows:
The focus for the general protections part under this Bill is to provide rights and obligations for public sector and local government sector employees and employers.
[64]It was the respondent's submission that all of the actions claimed by the applicant to constitute adverse action, were actions that the respondents were empowered to take pursuant to particular provisions of relevant State Acts. That is, that particular laws of the state included express provisions which empowered the health service to act as it did in suspending and transferring the applicant, and in commencing investigations into Ms Mattner's conduct.
[65]The decision to relocate the applicant to Ipswich was a decision made pursuant to s 137(3) of the PS Act, the decision made to commence a show cause disciplinary process in response to the pathology slip and VMO allegations was a decision made pursuant to Chapter 6 of the PS Act, while the decision made to commence a health service investigation in relation to various complaints made against Ms Mattner was made pursuant to Part 9 of the Hospital and Health Boards Act 2011 (HHB Act).
[66]The applicant did not accept however that the particular provisions relied on by the respondents could have the effect claimed. The applicant maintained that it would require a very specific legislative intent to be manifested in the PS Act or other state law for the health service to be granted immunity from the relevant IR Act provisions. It would be contrary to the purposes of the general protections' provisions of the IR Act if the provisions relied on were to have the effect of, or to provide authority for, the respondents to injure Ms Mattner in her employment or to alter her position to her prejudice.
[67]Justice Gaegler discussed the modern approach to statutory construction in his minority judgment in SZTAL v Minister for Immigration and Border Protection,[7] in the following terms:
[7] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
36 Drawing on that statement, and its antecedents, Brennan CJ, Dawson, Toohey and Gummow JJ said in CIC Insurance Ltd v Bankstown Football Club Ltd36:
"[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy."
37 Both of those passages have been "cited too often to be doubted". Their import has been reinforced, not superseded or contradicted, by more recent statements emphasising that statutory construction involves attribution of meaning to statutory text. The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and in so far as, it assists in fixing the meaning of the statutory text".
38 The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from "a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", in which case the choice "turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies".
39 Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, "the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation", "is in that respect a particular statutory reflection of a general systemic principle".
[Citations omitted]
[68]In Darlington v State of Queensland (Darlington),[8] Martin J observed:
[8] Darlington v State of Queensland (Queensland Police Service) [2016] ICQ 020.
[15] The fact that it is not immediately obvious how s 277(11) works with s 73 because of the use of the words "proposed contravention" does not mean that a court is at liberty to ignore them or treat them as superfluous. All words must prima facie be given some meaning and effect. See Project Blue Sky Inc & Ors v Australian Broadcasting Authority. Further, s 14A of the Acts Interpretation Act 1954 provides:
"(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation."
[16] It must be accepted, though, that there are occasions in which it may not be possible to provide a full and accurate meaning to every word. See Solution 6 Holdings Ltd & Ors v Industrial Relations Commission of New South Wales & Ors. If that is the case, then the "sections of a statute must be construed so as to make the statute a consistent and harmonious whole; and, ‘if after all, it turns out that that cannot be done, the construction that produces the greatest harmony and the least inconsistency is that which ought to prevail.’"
[Citations omitted]
[69]For the applicant, the starting point in the exercise of statutory construction was to review the purposes of Part 1 set out in s 278 of the IR Act. Further to this examination, it was relevant that Division 2 of Part 1 (Application of this part) cast the application of the Part in very broad terms and with very little qualification. Section 280(a) provided that Part 1 applies to "action taken by an employer", while the only exclusions to this provision were to be found in s 281 which excluded action subject to the Fair Work Act and an action for unfair dismissal.
[70]The applicant said that sections 278 and 280 of the IR Act are indicative of a legislative intention that the general protection provisions provide absolute and wide protection for employee's workplace rights and freedoms of association.
[71]The applicant relied on s 14A of the Acts Interpretation Act in submitting that the respondents' argument was counterintuitive and contrary to the legislative purpose. It was noted that Schedule 1 to that Act provides that "purpose", for an Act, includes "policy objective". If s 282(6) were able to be applied in the way proposed by the respondents, the applicant said that it would effectively undermine the purposes of Part 1 of Chapter 8, and render the protections provided as useless.
[72]In more particular terms, the applicant also relied on Federal Court of Australia judgments in the matters of CFMEU v Rio Tinto Coal[9] and CFMEU v De Martin & Gasparini Pty Limited[10].
[9] Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462.
[10] Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046.
[73]The matter in issue in CFMEU v Rio Tinto related to the validity of differential payments made by Rio Tinto to groups of employees. A consequence of the differential payment arrangements was that payments made to non-CFMEU members were greater than payments made to CFMEU members. The argument pressed by Rio Tinto in an application to strike out was that all payments were made in accordance with "workplace instruments" as defined in the FW Act. For CFMEU members, payments were made in accordance with an enterprise agreement. It was in this context that Rio Tinto argued that its differential or discriminatory payments were authorised by sections 50, 51, and 52 of the FW Act.
[74]Section 50 of the FW Act provides that a person must not contravene a term of an enterprise agreement. Section 51 of the FW Act provides that an agreement must "apply" to a person before rights or obligations can be enforced. Section 52 of the FW Act provides the circumstances in which an enterprise agreement applies to an employer, employee and employer organisation.
[75]It was Rio Tinto's submission that these provisions of the FW Act required Rio Tinto to pay employees in accordance with the terms of the relevant industrial instruments. For the CFMEU members, this meant that the payments made in accordance with their enterprise agreement were to be seen as payments authorised by the terms of the FW Act.
[76]In his decision, Flick J concluded that the payments made by Rio Tinto to CFMEU members pursuant to the enterprise agreement could not be properly regarded as payments "authorised" under the Fair Work Act or, alternatively, payments made "by or under" the Fair Work Act. Justice Flick said that the payments "remain as payments made in accordance with and pursuant to the terms" of the agreement. Sections 50, 51, and 52 of the Fair Work Act were not considered to be provisions which provided real authority to engage in conduct which otherwise fell within the definition of adverse action.
[77]It was as a consequence of this reasoning that the respondents argued that, if the judgement of Flick J was authority for anything, it was authority for the proposition that it was necessary to identify particular provisions in a State law which specifically authorised a particular course of action or conduct. Unlike the case in CFMEU v Rio Tinto, the respondents were not relying on a provision of an enterprise agreement, but were relying on specific provisions of the Hospital and Health Boards Act 2011 and the PS Act to authorise a particular course of action in the event of certain conduct occurring or reasonably believed to be occurring in the workplace. It was the respondents' submission that:
… there is an authority under the Public Service Act to commence a disciplinary process, and that’s what occurred in the show cause process here. In respect of Verifact investigation, the respondent is empowered to conduct an investigation under section 190, subsection (2) of the Hospital and Health Boards Act. Therefore, the relevant legislation authorises that which is said to be the adverse action. So this is not a situation where something else is being relied upon as the source of the power and the actual provision relied upon did not provide the authority, as was the case in Rio Tinto or as was the case in De Martin. The provisions of the relevant statutes that are relied upon authorise the action. (Transcript 02.10.19 at page 53).
[78]The determination of the respondents' arguments in these proceedings turns on the resolution to two matters. The first matter relates to the construction of s 282 of the IR Act and considers the interaction between s 282(6) and s 282(1) of the IR Act. The second matter considers whether the provisions of the State Acts relied on by the respondents "authorised" the taking of the adverse actions, in circumstances where Justice Flick's reasoning around the use of the term "authorise" is followed.
Section 282 of the IR Act
[79]Justice Flick considered the interaction between the FW Act equivalents of s 282(6) of the IR Act and s 282(1) of the IR Act, and discussed whether the exclusion provided in s 282(6) of the IR Act could displace the protection afforded by s 282(1) of the IR Act. He concluded, on the facts and circumstances of the case that he was deciding, that to construe s 282(6) in the manner advocated by the employer would be to "impermissibly intrude into the protection otherwise afforded" by s 282(1).
[80]Section 342(3) of the FW Act is expressed in the same terms as s 282(6) of the IR Act, while s 342(1) of the FW Act is expressed in the same term as s 282(1) of the IR Act. Justice Flick reasoned (by reference to the sections of the IR Act) that the exclusion in s 282(6) from what would otherwise be adverse action under s 282(1) was to be construed in a manner which gives effect to both the prohibition on adverse action (ss 285 and 291), and the exclusion. In this regard, he considered that if Rio Tinto's position were adopted, it would give "unnecessary and unwarranted pre-eminence" to the exclusionary provision at the expense of the protection afforded. It was his Honour's reasoning that:
In other statutory contexts a "wide construction" has not been placed upon an exemption where to do so would be "inconsistent" with the general scheme of the Act: Waters v Public Transport Corporation (1991) 173 CLR 349 at 369 per Mason CJ and Gaudron J.
…
Section 342(3), in this confined statutory context, provides an exception. Section 342(3) should obviously not be construed in a manner which would render the protections meaningless. That which s 342(3) contemplates, it is concluded, is "action" that is expressly "authorised" by the Fair Work Act or "action" that is sanctioned or approved by a provision (for present purposes) relevantly found elsewhere in the Fair Work Act.
The "authority" which is referred to is an "authority" which takes its content from the "adverse action" which is prohibited. In the present context, the "authority" to which s 342(3)(a) is referring to is an "authority" to engage in conduct which otherwise falls within Item 1(d). Section 50, 51 and 52 provide no real "authority”.
If attention is confined to the terms employed in s 342 and the legislative objective sought to be achieved by that one provision, Rio Tinto’s submission is rejected as to the "wide construction" sought to be given to s 342(3) and the narrow operation to be given to s 342(1).
[81]Consistent with the principles enunciated by Justice Gaegler in SZTAL, the constructional choice may turn on the "evaluation of the relative coherence of the alternatives with identified statutory objects or policies", and that "integral to making such a choice is discernment of statutory purpose".
[82]In the absence of an express provision in either the PS Act or the HHB Act authorising the taking of adverse action, I accept that to construe s 282(6) in the manner advocated by the respondents would be inconsistent with the purposes of Part 1 of Chapter 6 of the IR Act and would render the protections contained in the section 282(1) meaningless.
[83]For the reasons that follow, I accept that the required express provision is provided in the case of s 137 of the PS Act, but not provided in Chapter 6 of the PS Act, nor in Part 9 of the HHB Act.
Authorise
[84]In Visy, Justice Flick had concluded that the particular sections of the FW Act relied on by Rio Tinto provided no real authority for the action taken. In so concluding, Justice Flick stated that caution needed to be exercised in assigning a meaning to the word "authorised", that a wide construction was to be avoided, and that the ordinary and natural meaning of the term "authorise" did not support the position advanced on behalf of Rio Tinto.
[85]In ascertaining the ordinary and natural meaning of the word "authorise", the Macquarie Dictionary definition of the word was referenced:
1. to give authority or legal power to; empower (to do something). 2. to give authority for; formally sanction (an act or proceeding). 3. to establish by authority or usage: authorised by custom. 4. to afford a ground for; warrant; justify.[11]
[11] Macquarie Dictionary 6th edition (2013)
[86]Justice Flick closely considered the use of the term "authorise" as it is used in the equivalent of s 282(6) of the IR Act and stated that, if the ordinary meaning of the term were applied, then the application of s 282(6) required the identification of some provision of a state law which gave "authority or legal power" to take a particular action:
If this ordinary meaning of the term is to be applied to s 342(3)(a), the success of Rio Tinto’s primary submission thus depends upon the identification of some provision of the Fair Work Act which gives "authority or legal power" or which "empowers" Rio Tinto to make discriminatory payments.
[87]Whether or not the provisions of the Acts relied on by the respondents authorise the taking of the action in question is a matter for consideration. Section 187 of the PS Act provides that an employee may be disciplined and identifies grounds for discipline:
187 Grounds for discipline
(1) A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
(a)performed the employee’s duties carelessly, incompetently or inefficiently; or
(b)been guilty of misconduct; or
…
[88]Section 187 of the PS Act does provide any unconditional authorisation for a public sector employer to injure an employee in employment or alter the position of an employee to their prejudice. It is only if a legitimate finding is made that a ground for discipline exists that some form of disciplinary action can be taken. If legitimate grounds do not exist, the section could not be construed to authorise the taking of adverse action. In these proceedings, the factual contest requires a determination to be made about whether disciplinary action may have been taken, not because of misconduct, but because Ms Mattner exercised a workplace right or participated in an industrial activity. Section 282(6) could not operate to prevent an inquiry into the legitimacy of the grounds or reasons for taking adverse action.
[89]Whether s 187 of the PS Act is the source of power or legal authority to commence an investigation is also doubted. The principal purpose of the section is to identify grounds for discipline and to provide guidance to public sector employers around the type of conduct or behaviour which should or could attract disciplinary action. This section operates consistent with the purposes of the legislation which are enunciated in s 3 of the PS Act.
10 October 2018 complaint by Ms Kimlin – An email from Ms Kimlin to Ms Reid included allegations against Ms Mattner, including that Ms Mattner was continually undermining directions given by Ms Reid.
11 October 2018 complaint by Mr Schoewald - In a further email to Ms Finley dated 11 October 2018, Mr Schoewald elected to summarise what he described as "some major bullying and slander issues".
His summary captured incidents occurring from July 2018 to the 10 October 2018 incident that was dealt with in his separate email of that date. In all, this summary email included commentary on 13 incidents all of which involved Ms Mattner. Ms Finley forwarded the email to Ms Koch and Ms Bradley on 11 October 2018. Ms Koch subsequently forwarded the email to Kathryn White and Jen Hair in human resources.
15 October 2018 complaint - Ms Mattner had been counselled by Ms Dwyer in relation to this complaint. A file note of the complaint is in the evidence as Exhibit 10. The complaint related to an event in which a Nurse Practitioner had advised a registered nurse that a patient should be immediately sent to the Princess Alexandra Hospital for review. However, on the same day Ms Mattner had intervened and directed that the patient should not be sent to the PAH but should stay at Wolston where he would continue to be assessed and that the patient would be reviewed again the following day. Ms Mattner had erred by not following the Nurse Practitioner's advice in the first instance, and then if she believed that circumstances warranted the advice not being followed, in not discussing the matter with the Nurse Practitioner before electing not to send the patient to the PAH.
19 November 2018 complaints - Ms Dwyer emailed Ms Finley and Ms Bradley on 20 November 2018 in which a file note prepared by Ms Dwyer was attached. The file note is a record of a discussion between Ms Dwyer and Ms Polmeer on 19 November 2018. Ms Dwyer said that Ms Polmeer had arranged to see her regarding concerns she had about the Wolston Correction Centre. The file note recorded multiple complaints against Ms Mattner.
Ms Dwyer received a further email from Ms Polmeer on 21 November 2018 which included two file notes. The covering email referred to a deep concern for patients and for the writer's own professional safety. One of the file notes related to a discussion between Ms Polmeer and Ms Mattner about the distribution of S8 medication. It was alleged that during the discussion Ms Mattner became upset, spoke aggressively and refused to entertain any change to the current procedure. The issue escalated and it was claimed that Ms Mattner made personally insulting remarks, told Ms Polmeer that she gave her the "shits", and said that she did not like working with Ms Polmeer.
[434]In my view the complaints were serious in that they alleged an unacceptable disregard for directions given by nurse practitioners, an unacceptable disregard for patient care, and significant interpersonal failures.
Was the response to the complaints proportionate?
[435]The complaints as individual items, do not appear to have been addressed or adequately addressed in most instances. The opportunity for the informal resolution of minor issues had passed and the overriding consideration was whether the complaints history required a response of some substance. It would have been a failure of management had this not occurred.
[436]The number of the complaints and complainants, the severity of the complaints, and the implications for team work, operational efficiency and patient care support a conclusion that a formal investigation was warranted and that the use of an external investigator to review complaints and investigate allegations was appropriate.
Temporal considerations
[437]The effect of the applicant's submission was that in circumstances where Ms Finley had no legitimate reason to act on historical complaints, her decision to refer complaints to HR soon after Ms Mattner had attended union meetings, was most likely motivated by an improper purpose.
[438]The effect of Ms Finley's evidence was that there was no connection between her decision to refer the complaints on 22 November 2018 and Ms Mattner 8 October 2018 complaint and her participation in industrial activities on 19 and 21 November 2018. Apart from her denial that she did not refer the complaints for a prohibited reason, and that she did not know that Ms Mattner had attended union meetings, the timing of the referral was attributed to (a) her absence on annual leave and her failure to action particular complaints before she went on leave; (b) the receipt of another complaint soon after her return from annual leave; (c) the fact that on her return from annual leave she had over 1,000 emails to respond to and that this volume of emails delayed her actioning the outstanding complaints until on or around 22 November 2018; and (d) that she was prompted to address the complaints about Ms Mattner in a conversation that she had with Ms Prince on the morning of 22 November 2018. In regard to this latter consideration, Ms Prince provided corroborating evidence.
[439]I do not find these explanations to be implausible. On objective review, action on unattended complaints had been delayed by Ms Finley's absence on annual leave and it would have been apparent to Ms Finley on her return from leave that the complaints needed evaluation and review. Her actions were consistent with this imperative.
Was the Verifact investigation manipulated for improper reasons?
[440]The Verifact investigation was conducted by Ms Suarez from the start as an investigation which included consideration of all workplace issues at the Wolston Correctional Centre and was not confined to a consideration of complaints made against Ms Reid.
[441]Ms Bradley did not change the course of the Verifact investigation on 8 November 2018. When she said that that she wanted the Verifact interview list to be more representative, she most likely meant that she wanted the views of nurse practitioners to be heard. In so doing I accept that she knew that some of the nurse practitioners had concerns about both the interpersonal and professional conduct of Ms Mattner. To the extent that she facilitated the introduction of complaints against Ms Mattner however, she did not do so because Ms Mattner had exercised a workplace right.
[442]Ms Finley was direct in asserting that she considered it appropriate to use the Verifact process to investigate complaints about Ms Mattner. Given my finding that the decision to investigate the complaints was justified, and given Ms Suarez's evidence to the effect that it was intended that the Verifact process listen to all workplace complaints, there was nothing irregular or improper in Ms Finley acting as she did.
Decision
[443]The evidence does not support a finding that Ms Bradley's decision to add to the Verifact interview list on 8 November 2018 was causally associated with the exercise of a workplace right by Ms Mattner.
[444]The proposition that Ms Finley was motivated by a prohibited reason in addressing complaints made against Ms Mattner or in responding to the 25 November 2018 Hesse allegations is not supported by a factual matrix in which, at least since September 2018, concerns and complaints had been expressed in regard to Ms Mattner's conduct and behaviour and that the complaints disclosed a pattern of alleged behaviour which inevitably would have attracted attention and required review or investigation.
[445]It was unlikely that Ms Finley knew on or before 22 November 2018, about Ms Mattner's participation in the 19 November 2018 or 21 November 2018 union meetings and her reasons for referring complaints to HR for consideration and advice are consistent with the factual matrix.
[446]In circumstances where Ms Finley's explanations for acting are accepted, the temporal coincidence connecting Ms Finley's decision to refer complaints with Ms Mattner's attendance at union meetings, is not sufficient to sustain the proposition that Ms Finley was motivated by improper reasons.
[447]The responses to the 25 November 2018 Hesse complaints were predominantly guided by HR, and decisions on how to respond were made collaboratively on the documentary evidence, including the 6 December 2018 Verifact report. Neither Ms Finley nor Ms Bradley made a disproportionate contribution, and given the factual foundation for acting, it is unlikely that they altered the course of the decision-making process by making false representations.
[448]The evidence supports a balance of probabilities finding that the substantial and operative reason for commencing the Verifact Part B investigation was the pattern of complaints made against Ms Mattner and the extent and nature of those complaints.
[449]The evidence also supports a balance of probabilities finding that the respondents' reasons for commencing an investigation into the allegations made by Ms Hesse on 25 November 2018 were the existence of the complaint itself, Ms Mattner's complaint history, and the implication in the complaints for patient care.
[450]The evidentiary platform supports a conclusion that the substantial and operative reason for the taking of adverse action was the respondents' obligation to respond to complaints made about Ms Mattner and to have those complaints appropriately investigated. The respondents' reasons for taking adverse action did not include prohibited reasons.
[451]The application is dismissed.
Order for suppression
[452]The Commission makes the following order for suppression:
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 2016
Queensland Nurses and Midwives’ Union of Employees
Applicantv
West Moreton Hospital and Health Service
First RespondentMarie Finley
Second RespondentMichelle Giles
Third RespondentBretine Curtis
Fourth RespondentAPPLICATION TO DEAL WITH A DISPUTE PURUSUANT TO SECTION 309
Matter no. GP/2018/29 and GP/2019/3
CONSENT ORDER
FURTHER to the Hearing before Industrial Commissioner Black on 2 October 2019, IT IS ORDERED THAT:
1.Pursuant to s 580 of the Industrial Relations Act 2016, until further order, the Verifact Report and the attachments to the Verifact Report marked as Exhibit 17 in the proceedings are:
a.not to be published;
b.withheld from release or search.
Dated 3 April 2020
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