Scott v State of Queensland (Queensland Health)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Scott v State of Queensland (Queensland Health) [2022] QIRC 488
PARTIES:	Scott, Robert Adam (Applicant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	TD/2021/63
PROCEEDING:	Application for reinstatement
DELIVERED ON:	16 December 2022
HEARING DATE: WRITTEN SUBMISSIONS:	16 to 19 May 2022 Applicant's closing submissions filed 4 July 2022 Respondent's closing submissions filed 25 July 2022 Applicant's reply submissions filed 15 August 2022
MEMBER: HEARD AT:	Pidgeon IC Brisbane
ORDERS:	1. The application is granted. 2. That the Applicant be reinstated to his former position with the Respondent. 3. The reinstatement is to be on the basis that the Applicant's continuity of service is maintained. 4. The Respondent is to pay the Applicant the remuneration lost by reason of dismissal to be agreed or failing agreement to be the subject of a further application to the Commission. Any amount paid should take into account any income earned by the Applicant through employment he has undertaken during the relevant period.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND –UNFAIR DISMISSALS – Application for reinstatement – Where the Applicant was terminated for breaching the Code of Conduct – Whether the dismissal could be considered harsh, unjust or unreasonable – Whether the allegation could be substantiated on the balance of probabilities – Whether the Applicant received procedural fairness – Whether the Applicant had been adequately warned by the Respondent that his employment may be terminated – Where the Applicant continued working for the Respondent following the incident – Whether the Applicant should be liable for discipline – Whether the disciplinary action taken was disproportionate to the alleged conduct – Personal and financial impact of termination on the Applicant – Where the Applicant has attempted to mitigate his loss – Whether the Applicant should be reinstated – Whether reinstatement is impracticable due to a breakdown of trust and confidence in the employment relationship – Order for reinstatement
LEGISLATION: CASES:	Commission Chief Executive Guideline 01/17: Discipline cl 15.5 Industrial Relations Act 2016 ss 316, 317, 320, 321, 322 Public Service Act 2008 ss 179A, 187, 188 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 Bostik (Australia) Pty Ltd v Gorgevski [No 1] (1992) 36 FCR 20 Briginshaw v Briginshaw [1938] HCA 34 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Francis Hughes v BlueScope Steel (AIS) Pty Ltd [2022] FWC 4 Gold Coast District Health Service v Walker (2001) 168 QGIG 258 Gwatking v Schweppes Australia Pty Ltd [2015] FWC 3969 Jones v Dunkel (1959) 101 CLR 298 Laegal v Scenic Rim Regional Council [2018] QIRC 136 Nathan Hill v Cobham Aviation Services Pty Ltd T/A Cobham Aviation Services [2019] FWC 7875 Nesbit v MNHHS [2020] QIRC 066 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 Nicolson v Heaven and Earth Gallery (1994) 57 IR 50 Scott Challinger v JBS Australia Pty Ltd [2014] FWC 7963 Stephen Grantham v NSW Trains [2021] FWC 5995 Thomson v Brisbane City Council [2021] QIRC 429 White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041
APPEARANCES:	Ms N A-Khavari of counsel, instructed by K&L Gates for the Applicant. Ms A.C. Freeman of counsel, instructed by Crown Law for the Respondent.

Decision
Background

Dr Robert Scott (the Applicant) was employed by Wide Bay Hospital and Health Service (WBHHS) as a Senior Staff Specialist (Senior Medical Officer) in the Department of Emergency Medicine (DEM) at Bundaberg Hospital. He worked for the Respondent in a permanent, full-time capacity from December 2014 until his termination.
Prior to working at the Bundaberg Hospital from December 2014, Dr Scott had worked for Queensland Health as an emergency physician for over 25 years in various roles.
On 29 June 2021, Ms Debbie Carroll, Chief Executive of the WBHHS, wrote to the Applicant advising that his employment had been terminated pursuant to s 187(1)(g) of the Public Service Act 2008 (the PS Act). His dismissal was in relation to the substantiated allegation that he contravened, without reasonable excuse, a standard of conduct by behaving in an aggressive and threatening manner towards his colleagues Dr Sandra Rattenbury, Staff Specialist (Senior Medical Officer) and Ms Jenny Hinds, Clinical Nurse/Shift Co-ordinator in DEM, in front of other staff members and patients on 28 January 2021.

The dismissal followed a show cause process where Dr Scott was asked to respond to the allegation and the proposed disciplinary action of termination.
The Applicant contends that the termination was harsh, unjust and unreasonable pursuant to s 316 of the Industrial Relations Act 2016 (the IR Act) and filed an application for reinstatement with the Industrial Registry on 20 July 2021 in accordance with s 317.

Legislation and Directives

Section 320 of the IR Act sets out the matters to be considered by the Commission in hearing an application under s 317.
320 Matters to be considered in deciding an application
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider–
(a) whether the employee was notified of the reason for dismissal; and
(b) whether the dismissal related to –

(i)the operational requirements of the employer's undertaking, establishment or service; or
(ii)the employee's conduct, capacity or performance; and

(c) if the dismissal relates to the employee's conduct, capacity or performance –
(i)whether the employee had been warned about the conduct, capacity or performance; or
(ii)whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and

(d) any other matters the commission considers relevant.

The words harsh, unjust or unreasonable are to be given their plain and ordinary meaning.[1]
[1] Laegal v Scenic Rim Regional Council [2018] QIRC 136.
The Applicant submits that as Dr Scott was dismissed under s 187(g) of the PS Act, the Respondent bears the onus of proof to establish, to the reasonable satisfaction of the Commission, that on the balance of probabilities, the employee was guilty of the conduct as alleged. The Applicant says that while this is a separate consideration to whether the dismissal was harsh, unjust or unreasonable, a dismissal not authorised by the PS Act can lead to a conclusion that the dismissal was unjust.[2]
[2] Applicant's outline of argument filed 11 March 2022 [35].
The Applicant says that when considering 'harsh, unjust or unreasonable', the termination can be unjust if Dr Scott is not guilty of the conduct on which the Respondent acted, may be unreasonable because the Respondent decided upon inference which could not reasonably have been drawn from the material before the Respondent, and may be harsh in its consequences for the personal and economic situation of Dr Scott or because it is disproportionate to the gravity of the conduct in respect of which the Respondent acted.[3]
[3] Ibid [37].
The onus is on the Applicant to demonstrate that the termination (for disciplinary reasons) was harsh, unjust or unreasonable.[4]
[4] Gold Coast District Health Service v Walker (2001) 168 QGIG 258, 259 (Hall P).
The relevant parts of the PS Act are:

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 —
…
(g) contravened without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
…

188 Disciplinary action that may be taken against a public service employee
(1) In disciplining a public service employee, the employee’s chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

Examples of disciplinary action—
•termination of employment

•reduction of classification level and a consequential change of duties
•transfer or redeployment to other public service employment
•forfeiture or deferment of a remuneration increment or increase
•reduction of remuneration level
•imposition of a monetary penalty
•if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee’s periodic remuneration payments
•a reprimand

…

Commission Chief Executive Guideline 01/17: Discipline relevantly states:

15.5. Section 188 lists examples of disciplinary action that can be taken, however the decision maker is not limited to these examples. The following factors will be relevant considerations:
(a)the seriousness of the disciplinary finding
(b)the employee’s classification level and expected level of awareness about their performance or Code of Conduct obligations

(c)whether extenuating or mitigating circumstances applied to the employee’s actions

(d)the employee’s overall work record including previous management interventions and/or disciplinary proceedings

(e)the employee’s explanation (if any)

(f)the degree of risk to the health and safety of employees, customers and members of the public

(g)the impact on the employee’s ability to perform the duties of their position

(h)the employee’s potential for modified behaviour in the work unit or elsewhere

(i)the impact a financial penalty may have on the employee

(j)the cumulative impact that a reduction in classification and/or pay-point may have on the employee

(k)the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.

Code of Conduct 'Principle 1: Integrity and impartiality' relevantly states:

1.5 Demonstrate a high standard of workplace behaviour and personal conduct

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public. We will:
· treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own
· ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment

· ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients

· ensure our private conduct maintains the integrity of the public service and ability to perform our duties

· comply with legislative and/or policy obligations to report employee criminal charges and convictions.

Dr Scott's Case

An outline of argument filed on 11 March 2022 sets out the following bases of Dr Scott's case:[5]
[5] Applicant's outline of argument filed 11 March 2022 [5].
(a) Dr Scott did not behave in an aggressive and threatening matter towards Dr Rattenbury and Ms Hinds as alleged, where there were: significant mitigating factors; procedural fairness defects; and Dr Scott has not contravened the Queensland Code of Conduct (paragraphs 38 to 42).
(b) While Dr Scott was notified of the reason for his termination, he was not adequately warned about the conduct as: it was unreasonable to substantiate that there was "similar behaviour", or "a course of conduct"; and Dr Scott was never warned that further findings of certain conduct could result in the termination of his employment (paragraphs 43 and 44).

(c) While there was a show cause process, it was inadequate or flawed where: Dr Scott was not advised of the relevant standard of conduct he was alleged to have contravened; there were insufficient particulars in relation to what constituted "threatening and aggressive" behaviour; and there were elements of predetermination by the Chief Executive (paragraph 45).

(d) The termination was disproportionate to the gravity of the conduct, in light of Dr Scott's insight and remorse, length of service and significant experience, contribution to public service emergency medicine, and given the significant and potentially career ending impact of the termination (paragraph 46).

(e) Further the perceived seriousness of the conduct and outcome is not reflected in the management of the allegation, where Dr Scott was not suspended and was not alleged to have engaged in misconduct (paragraph 46).

(f) There were a number of significant and relevant mitigating factors that were not adequately considered or provided sufficient weight (paragraph 46).

Incidents of 28 January 2021

Submissions and an outline of argument made on behalf of Dr Scott set out the incidents of 28 January 2021 from his perspective. The evidence in chief for this matter was by way of affidavit with witnesses cross-examined before the Commission. In its outline of argument filed on 11 March 2022, Dr Scott's representative provides some background to the matter and then goes on to separately address the 'Dr Rattenbury Incident' and the 'Ms Hinds Incident'. The Applicant contends the following:
10.     Dr Scott's rostered shift on 27 January 2021 (12:30pm to 11:00pm) was very difficult in terms of patient management, with a full ED, where he had no rostered break, a ten-minute dinner break, and didn't finish until 11.45pm. He had two hours of sleep prior to commencing his shift at 12:30pm on 28 January 2021, where Dr Scott contemplated taking personal leave but was concerned about how this would impact patient care.[6]
11.     For Dr Scott's shift on 28 January 2021, he was the assigned Rapid Assessment Doctor (where the usual duties of the role involve seeing patients in acute area, not the waiting room), there was no handover, as the previous Consultant was dealing with emergent matters, where Dr Scott briefed himself in the Southern Fishbowl.[7]
12.     At approximately 1.30pm Dr Scott got up to walk out of the Southern Fish Bowl, but before getting to the end, Dr Rattenbury (seated at one of the computers), turned her head and said "can you go and RAT[8] the patients in the waiting room?" Dr Scott was of the view that this was a task she wasn't prepared to fulfil, where in his view as Team Leader she should have attended to this herself, where she was delegating it so she did not have to deal with it. Dr Scott turned around and said "no I fucking well won't", and suggested that she do it herself – comments that lasted around 30 seconds (Dr Rattenbury Incident). Dr Scott denies moving towards Dr Rattenbury, or physically standing over her (where he was standing when Dr Rattenbury commenced talking to him whilst seated), and recalls seeing Dr Rattenbury in the kitchen at around 3:00pm, watching television and laughing, and did not appear emotionally upset at that time.[9]
13.     Dr Scott spoke with Jennifer Hinds, Clinical Nurse, DEM and Nurse Team Leader in the ED, at around 2pm in the training rooms, and said words to the effect of "can you tell me what is happening with the beds" and "what are your nursing colleagues doing about the patient flow problem", with the conversation being no longer than one minute (Ms Hinds Incident). Where Dr Scott admits speaking with urgency where his demeanour may have been impacted by his exchange with Dr Rattenbury, but denies raising his voice or putting his face close to Ms Hinds, where even Ms Hinds' own evidence does not allege that he put his face close.[10]
14.     Dr Scott apologised unreservedly for his statement to Ms Hinds, when meeting with Dr Terry George, Clinical Director, DEM, and Ms Hinds just after the comments were made, where by the end of the conversation Ms Hinds no longer appeared to be upset. During this meeting and for the remainder of Dr Scott's shift, he and Ms Hinds communicated in a professional way with each other.[11] Dr Scott also provided an unreserved apology to Dr Rattenbury, Ms Hinds, Dr George, Ms Ollis and Dr Beacom, the WBHHS and the Hospital in his show cause response letter to Debbie Carroll, Chief Executive, WBHHS, dated 19 February 2021.
[6] Affidavit of Dr Robert Adam Scott sworn 22 December 2021 [27]-[33].
[7] Ibid [34]-[35], RS-03.
[8] 'RAT' refers to 'Rapidly Assessing and Triaging'.
[9] Affidavit of Dr Robert Adam Scott sworn 22 December 2021 [39]-[45], [59].
[10] Ibid [46]-[50]; Affidavit of Ms Jenny Hinds sworn 8 February 2022 [9]-[10].
[11] Affidavit of Dr Scott sworn 22 December 2021 [52]-[56], [60].
Steps following the incident and show cause process

Dr Scott says there was no formal investigation in relation to the incidents. Dr Scott was not suspended from his position at any time following the incidents until his termination. Dr Scott continued working in the Emergency Department, including as Team Leader, without incident until he was required to take sick leave due to overdue hip resurfacing surgery on 14 May 2021. During this time, he worked with Dr Rattenbury and Ms Hinds without issue.[12]
[12] Applicant's outline of argument filed 11 March 2022 [16].
On 2 February 2021, Dr Scott received a letter from Ms Carroll, requesting him to show cause in relation to the allegation.
Dr Scott's representative points out that the first show cause letter includes the statement, 'Having considered the information currently available to me in respect of allegation one, I consider there are grounds for you to be disciplined pursuant to the Public Service Act 2008: Section 187(g).'[13]
[13] Ibid [17].
As discussed above, Dr Scott provided his response to the show cause notice on 19 February 2021. On 17 March 2021, Dr Scott received the second show cause notice informing him that the allegation had been substantiated and that Ms Carroll was giving serious consideration to the termination of his employment. The second show cause letter included the following statement: 'I now have a loss of trust and confidence in your capacity to conduct yourself in accordance with the Code of Conduct for the Public Service, and the values and behaviours of WBHHS'.
Dr Scott responded to the second show cause notice on 7 April 2021. On 26 March 2021, through his indemnity insurer, Dr Scott completed a Personalised Education Plan, focusing on appropriate communication and dealing with conflict.[14]
[14] Affidavit of Dr Robert Adam Scott sworn 22 December 2021 [72], RS-10.

Previous non-disciplinary and disciplinary processes

The Applicant's outline of argument sets out non-disciplinary and disciplinary processes pertaining to Dr Scott's employment.
Dr Scott received a non-disciplinary warning regarding two separate incidents on 22 February 2018 (warning in letter dated 1 November 2018) and 7 July 2018 (warning in letter dated 19 September 2018). These incidents occurred some two-and-a-half to three years prior to the 28 January 2021 incident.
In or around February 2019, Dr Scott was the subject of an investigation and suspended until May 2019. While Dr Scott made certain admissions about comments he made, he denied and still denies being 'aggressive or intimidating' or making the other statements he is alleged to have made.[15] For completeness, the investigation report is in evidence and I have reviewed it. Of 23 allegations investigated, three were substantiated and one was partially substantiated.
[15] Applicant's outline of argument filed 11 March 2022 [24].
As a result of that process, Dr Scott received a reprimand, a Performance Improvement Plan (PIP) was implemented and Dr Scott engaged in an Ethics, Integrity and Accountability refresher. Dr Scott had a PIP and supplementary PIP from 4 September 2019 and 29 January 2020 which were successfully completed without issue by May 2020. Dr Scott received formal notification of completion on 29 July 2020. Dr Scott says that the PIP included a recommended communication program that was not available to him, so he sourced his own course which he attended and paid for himself.[16]
[16] Ibid [26].

On 19 March 2021, Dr Scott was alleged to have behaved unprofessionally in a phone call with a doctor from Gayndah Hospital, and after providing a response, Ms Carroll decided to accept Dr Scott's explanation but issued a 'reminder' in relation to the alleged behaviour.[17]

[17] Ibid [27].

The conduct and the contravention

The Applicant submits that when having regard to all of the circumstances, the allegation cannot, on the balance of probabilities, be substantiated against him. The Applicant says that Dr Scott did not behave in an aggressive or threatening manner towards Dr Rattenbury and Ms Hinds in front of other staff members and patients on 28 January 2021 where:[18]
(a)      Ms Hinds' and Ms Suzanne Smith's original statements do not describe the Applicant's conduct toward Ms Hinds as aggressive or threatening only that the Applicant spoke to Ms Hinds 'in a raised voice', Ms Katrina Ollis's original statement provides 'yelled', however, she was not a direct witness to the incident;[19]
(b)      The Applicant's medical condition, namely tinnitus, impairs the Applicant's hearing and can prevent him from appreciating the level of his voice and, taking into consideration that the Emergency Department (where the conduct took place) is an inherently noisy environment;[20]
(c)      Dr Rattenbury alleges that: Dr Scott's behaviour was 'threatening physically' towards her, he 'stood over' her; and Dr Scott was 'red in the face', in circumstances where Dr Rattenbury was seated during the interaction, and Dr Scott has a naturally red skin tone, and denies standing over her;[21]
(d)      there was and is insufficient evidence from the witnesses, relied upon by the Respondent, to support the finding that patients heard or witnessed the conduct.
[18] Ibid [39].
[19] Affidavit of Ms Jenny Hinds sworn 8 February 2022, JH-02.
[20] Affidavit of Dr Robert Adam Scott sworn 22 December 2021 [80]-[82].
[21] Ibid [41], [43]-[44].
The Applicant points to significant mitigating factors which it claims were not adequately considered or provided appropriate weight by Ms Carroll:[22]
[22] Applicant's outline of argument filed 11 March 2022 [40].
(a) the onerous nature of Dr Scott's prior shift and his consequent fatigue when presenting for his shift on 28 January 2021;
(b) the manner in which Dr Rattenbury spoke to Dr Scott and gave to him a work direction, when regard is had to Dr Scott's previous experiences in his professional interactions with Dr Rattenbury in which Dr Rattenbury had displayed antagonism toward Dr Scott;

(c) the emergent and stressful situation in the Emergency Department caused by a patient flow issue;

(d) the impact of the Applicant's medical condition, tinnitus;

(e) Dr Scott did not intend for Dr Rattenbury, Ms Hinds or any other staff or patients of WBHHS to feel threatened by this conduct;

(f) on 28 January 2021, Dr Scott offered an immediate apology to Ms Hinds; and

(g) Dr Scott's acknowledgement that his behaviour was inappropriate in his Show Cause Response.

Procedural fairness

Dr Scott contends that there were procedural fairness defects with the process leading to Ms Carroll making the finding that the allegation was substantiated.
Notified of reason

Dr Scott says that he was notified of the reason for the termination. However, Dr Scott says that he was not adequately warned about the conduct where:[23]
[23] Ibid [44].
(a) Reliance on 'similar behaviour' or prior warnings was and is unreasonable where:
(i)the Non-Disciplinary Warnings were non-disciplinary in nature, occurred 2.5 to 3 years prior to the 28 January 2021 incident, and involved matters that were disputed by Dr Scott where appropriate explanations were provide by Dr Scott;
(ii)the processes undertaken by the Respondent in substantiating that the 'similar behaviour' had occurred, in the context of the Reprimand and PIP were and are flawed;
(iii)the factual context in which the 'similar behaviour' arose provided satisfactory explanations for the Applicant's behaviour;

(b) it was unreasonable for the Respondent to conclude, as it did, that the Applicant had engaged in a 'course of conduct' which does not align to the Code of Conduct nor to the values and behaviours of the WBHHS…
(c) at no time during the non-disciplinary warnings, the February 2019 investigation, the issuing of the Reprimand, or during the PIP/supplementary PIP, or the Reminder, or any time after that, was Dr Scott put on notice that any further findings of misconduct or similar conduct would result in the termination of his employment.

Opportunity to respond

Dr Scott acknowledges that there was a show cause process in relation to the allegation, but submits that it was inadequate or flawed as: the Respondent did not identify the 'relevant standard of conduct' of which it was said the conduct breached or how the conduct breached the Code; the show cause letters did not sufficiently particularise what aspects of the conduct the WBHHS was relying on to form the view that the Applicant behaved in an 'aggressive and threatening manner' towards Dr Rattenbury and Ms Hinds; and that Ms Carroll appears to have pre-determined the contravention of s 187(g) and the decision to terminate the employment where she reached the view that she had lost trust and confidence in Dr Scott's capacity to conduct himself in accordance with the Code of Conduct which goes to the heart of the employment relationship, where Dr Scott had yet to provide a response to the second show cause notice.
Other relevant matters
In submitting that the termination was harsh, unjust and unreasonable, in addition to the matters set out above, the Applicant submits that it is also relevant to consider:[24]
[24] Ibid [46].
(a) the termination of Dr Scott's employment was disproportionate to the gravity of the conduct, where there were alternative and more appropriate forms of disciplinary or management action available to the WBHHS, where the previous support through re-training or skill building in the PIPs and otherwise, was inadequate;
(b) that in relation to the alleged seriousness and gravity of the conduct, Dr Scott was not asked to show cause in relation to misconduct under s 187(b) of the PS Act, nor suspended from his employment…

(c) in the First Show Cause Response, dated 19 February 2021, Dr Scott offered a sincere and unreserved apology…

(d) Dr Scott's outstanding clinical ability, length of public service and significant and notable contribution to WBHHS;

(e) despite Dr Scott's serious health issues with his hip for the prior 12 to 18 months, the Applicant postponed surgery to support the WBHHS COVID-19 pandemic response and continue to work full-time, up to his surgery on 14 May 2021;

(f) the insight and genuine remorse shown…
(g) the Applicant's age, and the impact the termination will have in forcing the Applicant into a premature retirement…

Dr Scott says that the termination of his employment from the Hospital has the practical effect of barring him from employment at other Queensland Health Hospital and Health Services for the remainder of his working life. Dr Scott says that the termination will remain on his personal record and if asked, he is required to declare the disciplinary action taken against him, which will preclude him from future employment.[25]
[25] Affidavit of Dr Robert Adam Scott sworn 22 December 2021 [138].
Dr Scott says that there are no other public Emergency Departments within the regional locality of Bundaberg, and there a very limited opportunities for alternative work in the region for an Emergency Medicine physician in private practice.
Dr Scott says that he seeks to be reinstated to his position, that he believes he can learn from this matter, that he has undertaken additional training, and that he is willing to put the matter behind him. Dr Scott says that he can continue to have a professional working relationship with his previous colleagues and management. Dr Scott says that given his level of experience and training, he believes that reinstatement is a suitable and appropriate course of action.[26]
[26] Ibid [141].

The Case for the Respondent

The Respondent opposes the application and contends that the termination of Dr Scott's employment was not unfair and was reasonable, just and proportionate to the circumstances and the nature of the conduct committed by Dr Scott.
The Respondent contends that the termination of the employment was not unfair because:

(a) The Applicant's conduct the subject of the allegation is substantiated on the evidence;
(b) The Applicant was afforded procedural fairness; and

(c) The Applicant's dismissal was not disproportionate to the conduct so proved.

The Respondent sets out a different recollection of the incidents of 28 January 2021:
24.     The evidence before the Commission is that on 28 January 2021 at around 2pm, Dr Rattenbury, who was rostered as Team Leader for the Emergency Department on that day, asked the Applicant, who was also rostered to work in the ED, if he could assist with the Rapid Assessment Triage of patients in the waiting room. In response to this, the Applicant said "fuck" and shouted very loudly at Dr Rattenbury that he was not going to see any patients unless they had beds. He then approached her in her chair and stood over her and shouted that she should go see management about the bed block, not him and asked why her board wasn't doing anything about the situation. The Applicant was agitated and aggressive throughout the exchange.[27]
[27] Respondent's outline of argument filed 25 March 2022 [24].
25.     Dr Rattenbury said words to the effect that she was not going to tolerate this behaviour from him anymore and it had to stop, and the Applicant stormed off.
26.     The incident was witnessed by other doctors and nurses in the vicinity. The incident was witnessed and heard by Ms Susan Hutchins, Senior Clinical Support Officer, who was about 10 metres away from the Applicant. Her evidence is that there were other employees, patients and visitors in the vicinity who also likely would have heard the incident.
27.     Ms Jenny Hinds, Clinical Nurse, who was also rostered to work in the ED that shift, witnessed the incident involving the Applicant and Dr Rattenbury and left the area to find Dr Michael who was in the training room, to assist. While she was speaking with Dr Michael about the situation, the Applicant entered the area and commenced yelling while looking at Ms Hinds. He demanded to know what had been done to fix the patient flow problem. This was also witnessed by Ms Suzanne Smith, Nurse Unit Manager.
28.     The Applicant left to go back to the ED and Ms Hinds, Dr Michael and Ms Smith followed. The Applicant stopped and turned around and said to Ms Hinds in a loud and aggressive way, 'what are you nurses doing about it, you think you run the place'.
The Respondent says that the Code of Conduct applies to all Queensland public service agency employees and anyone who works in any other capacity for a Queensland public service agency, which includes the WBHHS and the Applicant. Clause 1.5 of the Code of Conduct provides that employees have a responsibility to always conduct and present themselves in a professional manner and demonstrate respect for all persons, whether that be fellow employees, clients or members of the public.
The Respondent says that Dr Scott's initial show cause response dated 19 February 2021 did not deny the allegations; acknowledged that his behaviour towards other staff was inappropriate; appreciated that in light of his level of seniority and experience, he was expected to demonstrate a comprehensive understanding and appreciation for his professional obligations; and recognised that his conduct on 28 January 2021 was inconsistent with his professional obligations under the Code of Conduct as well as what is reasonably expected of a practitioner of his level of seniority and experience.[28]
[28] Ibid [31].
The Respondent says that the conduct of Dr Scott on 28 January 2021 was not an isolated incident and occurred in the context of a series of similar incidents involving complaints by staff about Dr Scott's behaviour, conduct and communication in the workplace. Dr Scott had previously been the subject of formal and informal management action arising out of other incidents of unacceptable behaviour in the workplace, despite management action, there had not been any improvement in Dr Scott's conduct.[29]
[29] Ibid [34].
With reference to the PIP in September 2019 through to May 2020, the Respondent says that Dr Scott was asked to focus on avoiding aggressive and loud disputes in public and staff areas and awareness of his own body language and communication style.
The Respondent says that as a result of Dr Scott's history, he had been put on notice numerous times prior to the incident on 28 January 2021 of the expectations that his employer had with respect to this conduct and his obligations under the Code of Conduct, including being directed to undertake refresher training in the Code of Conduct. The Respondent says that in the circumstances of this case, the Commission should conclude that Dr Scott engaged in the alleged conduct on 28 January 2021 and that it was in breach of the Code of Conduct, which was sufficiently serious in the light of his history, to warrant disciplinary action pursuant to section 187(1)(g) of the PS Act.
Work History and 'remedial actions' taken by WBHHS
Ms Carroll gave evidence about 'past remedial action' taken by WBHHS. By remedial action, Ms Carroll was referring to 'various actions undertaken since September 2018 in response to staff concerns and complaints about Dr Scott's body language, communication and presentation in the workplace'. Ms Carroll says that WBHHS had taken both disciplinary and non-disciplinary actions to 'explain to Dr Scott the high standards of workplace behaviour and personal conduct expected of all our staff and afford Dr Scott the opportunity to demonstrate that he could meet those standards'.[30]
[30] Affidavit of Ms Deborah Carroll sworn 8 February 2022 [63].

Consideration

For the reasons which follow, I find that the decision to terminate Dr Scott's employment was unfair because it was harsh. In coming to that decision, I have considered the following questions:
·Did Dr Scott engage in the conduct alleged?
·Did that conduct properly give rise to the relevant standard of conduct determined by the decision-maker?
·Was the disciplinary action of termination of employment unfair?
I have also considered the matters set out in s 320 of the IR Act. At the hearing, Dr Scott acknowledged that he received correspondence informing him of the reasons for his dismissal and accepted that he was given opportunities to respond to the allegations regarding his conduct and that he was paid in lieu of notice.
In accordance with s 320(d) of the IR Act, in determining if the dismissal was harsh, unjust or unreasonable, I must also have regard to any other matters I consider relevant.

Did Dr Scott engage in the conduct alleged?

Evidence regarding events of 28 January 2021

Written submissions and the evidence presented at the hearing addressed the events of 28 January 2021, subject of the allegation. I note that no investigation into the incident occurred, though I also note that where a decision-maker believes they have enough evidence before them to be satisfied a disciplinary process should commence, there is no particular requirement for an investigation. However, I note the submission of the Applicant that several witnesses involved in the incidents who are or were employees of the HHS were not called by the Respondent and that a Jones v Dunkel inference can and should be applied by the Commission.[31]
[31] Applicant's closing submissions filed 4 July 2022 [33] citing Jones v Dunkel (1959) 101 CLR 298.
Dr Scott worked a shift on the day prior to the events of 28 January 2021. His recollection was that during that shift, the Emergency Department was very busy. Arising from that shift, Dr Scott was frustrated about patients being seen in the corridor which is a non-clinical area.
Exhibit 2 is an email trail and includes an email sent to Dr Terry George from Dr Scott. Relevantly, it was sent on Thursday 28 January 2021, the day of the events in question, and Dr Scott says it was written to provide feedback on the previous night's shift of 27 January 2021. That email reads:
Hi Terry,
Despite feedback from me individually and group, medical staff still persist in using the corridor outside DRTRI to conduct, advise etc.
They do not seem to understand that:
This is not a clinical area and as a group we've decided not to put patients in non-clinical areas for good reason.
There is no confidentiality.
Reviews of cases from the US (current) leads me to conclude that this practice is likely to be medicolegally indefensible.
What worries me more is escalation to other corridors, and escalation of acuity.
Could you please advise all our staff not to do this. I now seem to do it on every shift.
Regards,
Robert A Scott
…
Dr Scott was taken to another part of that email thread, where, about half an hour into his shift, Dr Scott wrote to his line manager, Dr George, and complained about availability of car parking. That email contained the following sentence: 'this year, Terry, I'm prepared to call BS[32] any time I see it or any time someone tries to get me involved in it'.[33] Dr Scott disagreed that this demonstrated that he was already agitated by a number of issues early in his shift and said that he was not agitated but that some hours had passed since the previous shift and there were matters he wanted to raise with Dr George.[34]
[32] T 1-40, ll 5-7. Dr Scott agreed that "BS" 'probably does stand for "bullshit"'.
[33] Exhibit 4.
[34] T 1-39, l 40 – T 1-40, l 3.
Dr Scott's behaviour towards Dr Rattenbury occurred in response to what Dr Scott described as an abrupt instruction for him to RAT the patients in the waiting room. Dr Scott disagreed that he was agitated by Dr Rattenbury's direction that he RAT the patients, rather he said, 'I wouldn't say I was agitated. I was sleep deprived. I was tired physically, psychologically…'.[35] I have no reason to doubt Dr Scott's evidence that he was exhausted from what he described as an extremely onerous shift on 27 January 2021.
[35] T 1-36, ll 6-7.
I accept Ms Carroll's assessment that the delegation of the task to RAT the patients provided by Dr Rattenbury to Dr Scott in her role as Team Leader was not unreasonable. However, Dr Scott's evidence was that he had already identified what he felt needed to be done and was on his way to do it. Dr Scott said that he was not agitated by Dr Rattenbury's request, but 'disappointed' by it.[36] Dr Scott said that he 'didn't really understand why she hadn't done it herself or was prepared to do it herself, as I usually did, under those circumstances when I was a team leader.'[37] Further, Dr Scott said his experience had not involved the rapid assessment doctor undertaking a RAT of patients in the waiting room and that he was not aware of it ever happening on any shift he had worked and that he certainly had not done it himself.[38] Dr Scott said that at that stage the 'department and the hospital were blocked' and that 'when I came back on the floor, I picked up where I left off and I went to triage…'.[39]
[36] T 1-36.
[37] T 1-40, ll 14-17.
[38] T 1-49, ll 35-41.
[39] T 1-40, ll 37-45.
When asked whether by swearing at Dr Rattenbury and telling her to RAT the patients herself, he was not treating her with respect that day, Dr Scott answer that 'my view was that I was treating her probably with the same level of respect that she had shown to me and had shown to me in previous interactions throughout our acquaintance.'[40]
[40] T 1-41, ll 26-30.
Ms Carroll agreed that her expectation that people work as a team would also involve colleagues extending professional courtesy to Dr Scott.[41] Ms Carroll appeared to understand that Dr Scott was of a view that Dr Rattenbury had given the direction to RAT the patients without making inquiry as to what he was doing or what his responsibilities were at the time.[42] Ms Carroll also seemed to be aware that Dr Rattenbury had already asked Ms Hinds to seek assistance with rapidly assessing and triaging the patients from Dr Michael prior to asking Dr Scott. Ms Carroll agreed that Dr Rattenbury would have been aware of the number of patients in the waiting room since the beginning of her shift at 12.30 pm but said that Dr Rattenbury would have been undertaking tasks such as trying to discharge and move through patients.[43]
[41] T 4-26, ll 1-6.
[42] T 4-26, ll 1-6.
[43] T 4-27, ll 12-23.

Dr Rattenbury's evidence about 28 January 2021

Dr Rattenbury's statement also indicates that prior to 28 January 2021, she had problems with Dr Scott's manner but that they shared a 'satisfactory working relationship'.[44] Dr Rattenbury agreed that Dr Scott kept to himself in terms of his professional engagement with her but said that she had 'the same working relationship with Dr Scott as I had with the other senior doctors'.[45] Dr Rattenbury agreed that Dr Scott is a highly experienced specialist in emergency medicine with over 30 years' experience. Dr Rattenbury agreed that she respects Dr Scott as a peer and that he had worked in emergency medicine for considerably longer than she had. When asked if she agreed that Dr Scott had the capacity to work autonomously, Dr Rattenbury said that all emergency specialists work as a part of a team and that the level of autonomy has to be viewed within the work of the team.[46]
[44] Affidavit of Dr Sandra Rattenbury sworn 8 February 2022 [7].
[45] T 2-15, ll 4-13.
[46] T 2-13, ll 19-39.
Dr Rattenbury agreed that when she was in the role of Team Leader during the shift on 28 January 2021, she was not working in a managerial or supervisory role with regard to Dr Scott. Dr Rattenbury said that both she and Dr Scott reported to Dr George. Dr Rattenbury denied that there was any agreement that patients would not be seen unless they had been allocated a bed. Dr Rattenbury agreed that there had been a discussion about the appropriateness or otherwise of seeing patients in the corridor or waiting rooms but said that there was no hard and fast rule about it. Dr Rattenbury said that 'we had to do what we could do to make sure that patients were safe in our department' and said that all of the doctors held concerns about seeing patients in non-clinical areas but that as emergency medicine specialists, one of their main roles was to make sure patients were safe in the Department.[47]
[47] T 2-14, ll 15-47.
Dr Rattenbury agreed that the Emergency Department was busy on 28 January 2021 but said that this was not unusual and that bed blocking occurred during the shift.[48] She had no recollection of beds being parked in corridors during the shift and could not recall if she had been rostered on the previous shift on 27 January 2021.[49]
[48] T 2-16, ll 3-7.
[49] T 2-15, ll 15-27.
Dr Rattenbury said that she started her shift at 12.30 pm and that she would have been provided with a handover from the person on the morning shift but she could not recall who that was. Dr Rattenbury said that she did not recall what the situation in the waiting room was following handover and said that she recalled it was some hours after handover that she became aware that there were patients in the waiting room who may not be safe.[50] Dr Rattenbury disagreed that there were 10 category 3 patients in the waiting room when she commenced at 12.30 pm.[51] Further, Dr Rattenbury agreed that one option open to her was to RAT the patients herself but said that she was undertaking other tasks and identifying patients who would be a priority for her to assess.[52] Dr Rattenbury said that she was not aware that when Dr Scott commenced his shift at 12.30 pm, he had conducted a review of the acute beds and whether anyone could be moved.[53]
[50] T 2-17, ll 15-40.
[51] T 2-18, ll 10-14.
[52] T 2-18, l 26 – T 2-19, l 29.
[53] T 2-19, ll 40-44.
Dr Rattenbury said that she was unaware that Dr Scott was sitting at the other end of the Fishbowl diagonally across from her. Dr Rattenbury said she did not know if she said hello to Dr Scott before asking him to RAT the patients but said that she did not make inquiry of him about what he was planning to do prior to asking him to RAT the patients.[54]
[54] T 2-20, ll 15-29.
Dr Rattenbury agreed that there is nothing preventing the Team Leader from carrying out the RAT process themselves and said that she had done so many times and agreed that it is a fairly common practice 'when it's an appropriate use of time'.[55]
[55] T 2-20, ll 35-42.
Dr Rattenbury said that she continued as Team Leader for the rest of her shift and recalled that she generally has dinner around 7:00 pm. Dr Rattenbury said that she may have made a cup of tea to take back to her workspace but that she could not imagine it would be the case that she was in the kitchen at around 3:00 pm watching television.[56]
[56] T 2-20, l 46 – T 2-21, l 13.
Dr Rattenbury had no recollection of Dr Scott's duties on 28 January 2021. She said it was possible that Dr Scott was seeing patients in acute beds but that she did not observe him doing so. Dr Rattenbury agreed that the triage nurse has the capacity to identify if patients have deteriorated and then reclassify them accordingly.[57] Dr Rattenbury also agreed that rapidly assessing and triaging patients is only of assistance if there are actually beds within the Emergency Department available but said that a doctor would be able to assess which patients should be seen as soon as a bed is available and that this is not something a nurse can do.[58]
[57] T 2-21, ll 32-38.
[58] T 2-22, ll 6-17.
Dr Rattenbury could not recall if she asked Ms Hinds to locate Dr Michael to help with the patient flow issue prior to giving this task to Dr Scott.[59] Dr Rattenbury did not know why Dr Scott was in the Fishbowl but did not recall him being in it. It was put to Dr Rattenbury that Dr Scott was leaving the Fishbowl to attend to other work when she turned and saw him and ask him to RAT the patients. Dr Rattenbury did not recall Dr Scott walking past her but said he was walking towards her and she did not know if he was exiting. It was put to Dr Rattenbury that Dr Scott did not 'stand over' her and that he was walking past and being in a standing position while she was sitting, he would naturally have been close to her given the distance between the chairs. Dr Rattenbury said this was not what she had experienced.[60] Dr Rattenbury agreed that the exchange between herself and Dr Scott was short and that she had remained seated the whole time.[61] Dr Rattenbury agreed that she did not stand up or ask Dr Scott to move during the exchange but said that she made a statement about his behaviour. Dr Rattenbury agreed that she did not cry during the exchange.[62] Dr Rattenbury maintained that she felt threatened during the exchange. She recalled discussing the matter later with Ms Ollis and Dr Rattenbury agreed that she did not cry or become teary eyed with Ms Ollis.[63]
[59] T 2-26, ll 5-39.
[60] T 2-28, ll 6-28.
[61] T 2-29, ll 41-43.
[62] T 2-30, ll 1-11.
[63] T 2-30, l 30 – T 2-31, l 6.
I also note that under cross-examination, Ms Carroll's responses indicated that she had placed significant weight on the statement of Ms Ollis that Dr Rattenbury had been reduced to tears. As discussed above, Dr Rattenbury's own evidence at the hearing was that she was not reduced to tears and did not cry during or following the incident on 28 January 2021. Dr Carroll also agreed that there had been other witnesses to the events who did not provide statements and were not interviewed.
Dr Scott agreed that the way he spoke to Dr Rattenbury was not in accordance with the Code of Conduct[64] but said:
I was under extreme duress due to the previous shift that I had worked. Basically insomnia because of the activities – activities on that shift which I'd done my best to overcome and had been unable to do it. And then I found myself unexpectedly having to step up into the same role again that I had already performed the previous night. I would contend that had I not been in those circumstances, it's unlikely that I would have sworn at Dr Rattenbury.[65]
[64] T 1-42, ll 1-3.
[65] T 1-41, ll 40-46.

Ms Hinds' evidence about the events of 28 January 2021

Ms Hinds agreed that she had worked with Dr Scott for about six years and said that she had a professional working relationship with him and had had robust conversations with him in regard to work matters.[66] Ms Hinds was asked if there were occasions when Dr Scott made enquiries about the availability of beds and she responded with words to the effect of 'that's not my responsibility' or 'don't ask me about the beds. That's up to me'. Ms Hinds said that such discussions 'would have been in different situations' and that there is a 'whole context'. Ms Hinds described her role and agreed that it would not be unusual for her to have a robust discussion where she thinks it is necessary to make a comment of such a nature.[67]
[66] T 2-36, ll 37-43.
[67] T 2-37, ll 1-24.
Ms Hinds agreed that Dr Scott is a tall man with a larger build and that he is fair skinned and could have a naturally red complexion as a result.[68] Ms Hinds said that she had been aware for quite a few years that Dr Scott has the medical condition of tinnitus.[69]
[68] T 2-37, ll 26-34.
[69] T 2-37, ll 35-29.
Ms Hinds could not recall if she had worked on 27 January 2021. She could not recall if on that night, there had been beds in corridors due to insufficient space but agreed that such a thing does happen.[70] Ms Hinds recalled that on 28 January 2021, she started her shift at 7:00 am and that there were inpatients in the Department waiting to go to a ward area. Ms Hinds could not recall at what point in the day it occurred, but that by the time Dr Scott started at 12.30pm, the Emergency Department was full. Ms Hinds recalled Ms Ollis attending the Emergency Department on 28 January 2021 and said that it was normal for Ms Ollis to attend on the Emergency Department to see what the patient flow was.[71]
[70] T 2-38, ll 1-19.
[71] T 2-40, ll 11-18.
Ms Hinds could not recall if Dr Scott had been in the Fishbowl prior to her observing him standing next to where the Team Leader (Dr Rattenbury) was.[72] Ms Hinds recalled seeing the interaction between Dr Scott and Dr Rattenbury and maintained that it was of a threatening nature.[73]
[72] T 2-41, l 7.
[73] T 2-48, l 1-13.
With regard to the interaction between Dr Scott and herself, Ms Hinds said that Dr Scott's voice was raised but agreed that Dr Scott did not engage in any physically threatening behaviour in that circumstance.[74] Ms Hinds said that she felt that Dr Scott's voice was raised and that he was looking directly at her but agreed that he did not make a direct criticism of her and that 'he just referred to the nurses'.[75]
[74] T 2-53, ll 1-8.
[75] T 2-53, ll 23-27.
Ms Hinds agreed that at no point during the exchange did Dr Scott put his face close to hers and agreed that she had never told Dr George that he did so. Ms Hinds said that during the exchange, she became very emotional but said that she did not cry and tried to remain professional. Ms Hinds said that she had gone away to the nurses' unit and 'broke down' and was upset. Ms Hinds said that later in Dr George's office, Dr Scott offered her an apology but when asked if the apology was sincere, she said she had heard such an apology multiple times before.[76] Ms Hinds agreed that after she left Dr George's office, she was going to move forward to have a professional relationship with Dr Scott and that she continued to work with Dr Scott for the rest of her shift.[77]
[76] T 2-54, l 1 – T 2-55, l 17.
[77] T 2-55, ll 42-46.
Dr George recalled the meeting with Dr Scott and Ms Hinds after the incident and said that he had no reason to suspect that Dr Scott's apology was insincere.[78] Dr George agreed that frustrations with the situation in the Emergency Department were warranted but said that this type of circumstance was something emergency physicians deal with all the time and that there are 'certain standards of behaviour that are expected of them'.[79]
[78] T 3-20, ll 18-22.
[79] T 3-20, ll 30-34.
Dr Scott agreed that he had not treated Ms Hinds with courtesy and respect.[80] Dr Scott agreed that Ms Hinds told him that she had felt personally attacked and said that he apologised sincerely and unreservedly, 'even after – even after she had stuck her hand up in my face, which simply wasn't necessary, given the size of the room, and that everyone was sitting down'.[81] Dr Scott was of the view that when he interacted with Ms Hinds in Dr George's office, he responded appropriately to what Ms Hinds had to say to him.[82]
[80] T 1-42, ll 44-45.
[81] T 1-43, ll 4-9.
[82] T 1-43, ll 11-15.
I have reviewed the affidavits, statements made by email, "RiskMan" (Incident Management System) forms and the evidence provided at the hearing. It is clear that there were two incidents on 28 January 2022, one involving Dr Rattenbury and one involving Ms Hinds. Dr Scott does not deny that he spoke to both Dr Rattenbury and Ms Hinds and the evidence of all involved largely corroborates the content of the conversations. However, Dr Scott denies that his behaviour was aggressive[83] or threatening, that he stood over Dr Rattenbury and that he spoke close to Ms Hinds' face. Dr Scott maintains that he while he asked Ms Hinds what was happening with the beds and what her nursing colleagues were doing about the patient flow problem, he did not say words to the effect of 'you think you run the place'.
[83] T 1-37, l 8.
The single allegation addresses both the interaction with Dr Rattenbury and the interaction with Ms Hinds. It addresses two particular issues: one is that Dr Scott 'behaved in an aggressive and threatening manner' and the second is that this occurred 'in front of other staff members and patients'.
I have considered Dr Rattenbury's evidence in this matter and her written statement following the events of 28 January 2022. Having seen pictures and having the layout of the Fishbowl where the interaction occurred explained to me, I do not accept on the balance of probabilities that Dr Scott 'stood over' Dr Rattenbury. Ms Hinds, who witnessed the event, says that Dr Scott was 'standing very close' to Dr Rattenbury.[84] Ms Hinds said that when someone is sitting down with a tall person standing over them, they would not feel comfortable and that she thought the behaviour was threatening.[85] Ms Hutchins described Dr Scott as 'standing over' Dr Rattenbury but also described Dr Rattenbury as sitting down.[86] Under cross-examination, Ms Hutchins explained where she was located prior to and after the part of the events she witnessed. Ms Hutchins confirmed that she did not speak to Dr Rattenbury following the events but that she could 'physically' see how Dr Rattenbury felt.[87] I find it likely that Dr Scott was standing near Dr Rattenbury and that due to his height and because Dr Rattenbury was sitting on a chair, Dr Rattenbury may have felt like Dr Scott was 'standing over' her, but I do not accept that this was as a result of Dr Scott deliberately doing so in order to threaten her.
[84] Affidavit of Ms Jenny Hinds sworn 8 February 2022 [8].
[85] T 2-48, ll 3-9.
[86] Affidavit of Ms Susan Michelle Hutchins [6].
[87] T 3-41 – T 3-42.
Moreover, Dr Rattenbury described Dr Scott as being 'very red in the face'. I have observed Dr Scott to be a person who I would describe as 'fair' and I understand the evidence of some witnesses to be that Dr Scott could sometimes have an appearance of being red in the face. There was no expert evidence before me to link a person being red in the face with aggressive or threating behaviour. I further note that the events took place in the early to mid-afternoon in the middle of summer. I am not persuaded that Dr Scott's complexion during the events should be given any weight.
Additionally, Dr Rattenbury described the interaction as Dr Scott 'shouting at me and swearing',[88] says that she felt threatened, and claims that there was a potential that she could have been assaulted.[89] Furthermore, Ms Hutchins described Dr Scott's tone as 'threatening and attacking in nature' however, does not explain what was 'threatening' about the tone or speech.[90] It appears from the evidence that Dr Scott swore once and that the interaction was very short.
[88] T2-39, ll 16-17.
[89] T2-30, ll 15-17.
[90] Affidavit of Ms Susan Michelle Hutchins [10].
I accept that Dr Scott either shouted or spoke in an elevated voice and that he said the word 'fucking'. As discussed above, I accept that as Dr Rattenbury was sitting down throughout the interaction, she may have felt as though Dr Scott was standing over her. While Dr Rattenbury believed there was a 'potential that I could have been assaulted', I am not persuaded on the balance of probabilities that Dr Scott's words or behaviour involved a threat of assault. Based on the content of what he said, that he was standing while Dr Rattenbury continued to sit and the witness evidence before me, I am unable to conclude on the balanced of probabilities that Dr Scott behaved in a 'threatening' manner.
Ms Carroll said that Ms Hinds' evidence had been that Dr Scott had a raised voice and was yelling. It was put to Ms Carroll that Ms Hinds' statement did not describe Dr Scott's conduct as aggressive or threatening. Ms Carroll replied that '…Yelling is not a normal pattern of speech. So that was certainly an aggressive speech, yeah'.[91]
[91] T 4-27, ll 25-36.
Ms Smith recalled witnessing Dr Scott ask Ms Hinds, 'What are you nurses doing to fix this?' and said that Dr Scott was 'loud and yelling'. Ms Smith said that during that short interaction, she did not witness Dr Scott imposing a physical threat on Ms Hinds and that she could not recall Dr Scott putting his face close to Ms Hinds' face.
Ms Carroll was asked if she took into account that Ms Hinds' statement made no mention of Dr Scott placing his face close to hers. Ms Carroll said that she had taken that from Dr George's account and said that she believed it to be a truthful account of the events that happened in his office. It was put to Ms Carroll that Ms Hinds' evidence at the hearing was that Dr Scott never put his face close to hers. Ms Carroll said that she was not aware of that. Ms Carroll appeared to rely on the contention that Ms Hinds had been upset and needed to remove herself from duty because of the interaction. It was put to Ms Carroll that there were inconsistencies in the statements of Ms Ollis and Ms Smith regarding what Ms Smith witnessed. Ms Carroll said that she did not make enquiries in relation to this and appeared to say that she made her decision on the information before her.[92]
[92] T 4-30 – T 4-31.
Ms Hinds explained the challenge the Emergency Department faced on 28 January 2021 and said the 'the ED was particularly busy and was experiencing patient workflow issues'. Ms Hinds says that she and the ED staff were working very hard to deal with these issues. Ms Hinds' evidence was that Dr Scott spoke to her in an aggressive way and said that the tone and volume of his speech is what made it aggressive. Ms Hinds says that she was 'highly upset by the interaction' and that she was 'exhausted' and Dr Scott made her feel 'undervalued'. Ms Hinds said that she had been 'working really hard to manage the patient flow situation' and that she felt 'personally attacked'. Ms Hinds said, 'I felt threatened by Dr Scott's behaviour and considered it to be a personal attack'. Ms Hinds' statement does not explain what it was in particular that made her feel threatened. Nurse Unit Manager Suzanne Smith described Dr Scott's voice as 'aggressive' and 'raised'.[93] Ms Hinds' contemporaneous statement and affidavit appear to make no mention of Dr Scott standing very close to her. However, Dr George recalls Nurse Hinds telling him that Dr Scott had placed his face close to hers.[94] While I accept that Ms Hinds was upset and felt personally attacked, and that Dr Scott spoke to her aggressively, I do not accept that Dr Scott threatened Ms Hinds.
[93] Affidavit of Ms Suzanne Helen Smith sworn 8 February 2022 [5].
[94] Affidavit of Dr Terrence Francis George sworn 8 February 2022 [12].
Ms Carroll accepted that the interaction between Dr Scott and Ms Hinds had not occurred in a place where it could have been seen by patients.[95]
[95] T 4-31, ll 24-29.

· An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

· The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

· The fact that it may be difficult or embarrassing for an employer to be required to reemploy an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.[223]

[223] Nguyen (n 222) [27].

Trust and confidence is a relevant consideration when contemplating reinstatement, but it must be soundly and rationally based.[224]
[224] Applicant's closing submissions filed 4 July 2022 [123] citing Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
While Ms Carroll states that if Dr Scott were to be reinstated, she has no confidence that a similar incident regarding his behaviour or conduct would not reoccur or that Dr Scott would be able to conduct himself in accordance with the Code of Conduct,[225] Ms Carroll was content for Dr Scott to continue working in the Emergency Department in the months following the 28 January Incident. Further to this, he was allocated the duties of Team Leader on a number of occasions. With reference to the propositions considered in Nguyen, this evidence demonstrates that the relationship is 'capable of withstanding some friction and doubts'. I do not find that a view that there has been a loss of trust or confidence sufficient to preclude reinstatement can be maintained in such circumstances.
[225] Affidavit of Ms Deborah Carroll sworn 8 February 2022 [72].
Similarly, with regard to Ms Carroll's claim that she has serious concerns about the impact of Dr Scott's return on staff of the DEM and that it is vital that staff work effectively together to ensure the proper functioning of the ED,[226] I am of the view that Dr Scott demonstrated a capacity to work with his colleagues in the weeks and months prior to and following 28 January 2022. Ms Carroll was clearly of the view that the arrangements in place following the incident were sufficient that Dr Scott could continue working in the same environment with the same staff. I do not find that reinstatement is impracticable in the sense that it would create unacceptable problems or embarrassment or seriously affect productivity or harmony.[227] If Ms Carroll genuinely holds concerns for staff of the Emergency Department, there are any number of strategies Ms Carroll may seek to put in place to support Dr Scott's return to the workplace.
[226] Ibid [73]
[227]White (n 220) with reference to Nicolson v Heaven and Earth Gallery (1994) 57 IR 50, 61.

Ms Carroll says in her evidence that while file notes and previous complaints about Dr Scott were not part of her decision making in the discipline process and had no bearing on her decision to terminate Dr Scott's employment, they now confirm in her mind that she has no confidence Dr Scott would be able maintain appropriate behaviour in the workplace and his reinstatement would cause significant difficulties for staff in the workplace. I do not find that the file notes or complaints are of such a nature that they should serve to displace the weeks and months of work Dr Scott undertook without issue following 28 January 2021 and until his period of sick leave and the termination. Further to that, the matters raised in that material have not formed part of informal or formal disciplinary process and there is no evidence that Dr Scott has had the matters put to him or been given an opportunity to respond to them.
I accept Dr Scott's view that he was not sufficiently warned of the prospect of termination of employment resulting from any further conduct following the non-disciplinary warnings and reprimand. However, I am certain that it is now abundantly clear to Dr Scott that his employer has a view that conduct such as that substantiated on 28 January 2021 is such that it may give rise to grounds for discipline which may lead to disciplinary action, including termination of employment.
Dr Scott has repeatedly acknowledged that his conduct on 28 January 2021 was inappropriate. I found Dr Scott to be a credible, honest and genuine witness and I have no reason to doubt that his apologies at that time and throughout the show cause process were sincere. Further, I believe that Dr Scott is sincere in his belief that he can learn from the matter and put it behind him to continue to have a professional working relationship with his previous colleagues and management.[228]
[228] Affidavit of Dr Robert Adam Scott sworn 22 December 2021 [141].
Having considered the submissions of the Respondent and all of the evidence before the Commission, I am of the view there can be 'a sufficient level of trust and confidence restored to make the relationship viable and productive'.[229]
[229] Nguyen (n 222).
It is appropriate for the Respondent to consider alternative disciplinary and/or management action to be implemented in light of the substantiated allegation, noting that I do not find the conduct was threatening, and that Dr Scott be given an opportunity to show cause regarding any proposed disciplinary action.
Orders
I am satisfied Dr Scott was unfairly dismissed and I make the following orders, pursuant to s 321 of the IR Act:
1.       The application is granted.
2.       That the Applicant be reinstated to his former position with the Respondent.
3.       The reinstatement is to be on the basis that the Applicant's continuity of service is maintained.
4.       The Respondent is to pay the Applicant the remuneration lost by reason of dismissal to be agreed or failing agreement to be the subject of a further application to the Commission. Any amount paid should take into account any income earned by the Applicant through employment he has undertaken during the relevant period.

[2022] QIRC 488

16 December 2022