Stanley v State of Queensland (Queensland Health)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION PARTIES:	Stanley v State of Queensland (Queensland Health) [2021] QIRC 058 Stanley, Susan (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2020/381
PROCEEDING:	Public Service Appeal – fair treatment decision
DELIVERED ON:	17 February 2021
HEARD AT: MEMBER:	On the papers Pidgeon IC
ORDER:	The decision appealed against is confirmed.
CATCHWORDS: LEGISLATION:	INDUSTRIAL LAW - public service appeal - appeal against a fair treatment decision - where there was an administrative error which caused overpayment - where a grievance was raised in response related to the error - whether the internal review of the grievance outcome was fair and reasonable Public Service Act 2008 Individual Employee Grievances 11/20

Reasons for Decision

Ms Susan Stanley is employed at Sunshine Coast Hospital and Health Service (SCHHS) by the State of Queensland (Queensland Health) as an Assistant in Nursing in the Extended Services Unit.
On 29 June 2020, Ms Stanley lodged a grievance concerning overpayment of annual leave and leave loading, reduction in hours and rostering arrangements.
On 30 July 2020, Ms Stanley requested an internal review of the grievance outcome, and provided a letter detailing the reasons for her request on 7 August 2020. That request broadened the scope of her complaint to include an allegation of bullying by Ms Mitchell.
On 11 November 2020, Ms Stanley was provided with a written decision outlining the outcome of the internal review. In summary, the internal review concluded:

·the Health Service had waived the overpayment;
·the overpayment was caused by an administrative error;
·Ms Stanley had been fully informed of the overpayment process;
·Ms Stanley, in receiving additional leave, was not disadvantaged;
·there should have been managerial oversight of the informal roster arrangement between Ms Stanley and a work colleague that ended without notice;
·Ms Stanley was provided three roster options but declined them;
·Ms Stanley was not rostered her full hours between 15 July and 08 September 2019;
·Ms Chettleburgh would seek delegate (Chief Executive) consideration to top up Ms Stanley's wages due to the shortfall in her rostered hours (this has now been approved); and
·the allegation of bullying by Ms Mitchell was not substantiated.

Ms Stanley has lodged an appeal against the outcome of an internal review of a grievance outcome she received on 11 November 2020.
Background of the Appeal

Ms Stanley attaches the internal review outcome to her appeal notice and her reasons for appeal appear to respond to specific paragraphs of the internal review letter.
It appears from the first paragraph of Ms Stanley's reasons for appeal, that she is concerned that her complaint regarding the employee movement form was not investigated or referred to the Ethical Standards unit or the Crime and Corruption Commission.
From each of the following document: 'The Original Grievance, The Investigation and the Response' the issue of my Original 'Employee Movement Form Permanent' being changed without my knowledge, witnessed by me, signature and date were used without my permission and fraudulent (sic) transferred to another 'Employee Movement Form Permanent' and lodged to the Human Resources department. In all the above documents this matter has not been investigated or referred to the Ethical Standards, Crime and Corruption Commission.
With regard to the internal review decision regarding Concern 1: Incorrect Leave and Loading accrual, the internal review decision letter stated:
Ms Mitchell's outcome to your Stage 1 Grievance was that the overpayment was waived, meaning that the SCHHS will not be pursuing the overpayment from you. This outcome was communicated to you on 17 July 2020 via phone call and letter. Therefore I am of the view that you have been fully and appropriately informed of this process and the reasons for the overpayment. I also find that you have not been disadvantaged by this administrative error as you have received an additional weeks' leave and higher leave loading between July 2016 and September 2019, which the SCHHS will not require you to pay back. Accordingly, SCHHS will take no further action regarding Concern 1.

Ms Stanley's reasons for appeal address 'Decision Concern 1':
The day I gave Ms Mitchell a copy of my 'Original Employee Movement Form Permanent' her behaviour was of shock that I had a copy. Once I gained a copy of the lodged Employee Movement Form Permanent from HR and could see it had been changed, the evidence showed it had been changed without my knowledge or permission. Note: I am only an Assistant in Nursing with limited knowledge of what should be correct on an 'Employee Movement Form Permanent'. I trusted that my Acting/Nurse Unit Manager & Acting/Director of Nursing would responsibly fill in the form correctly. I had no knowledge I was being over payed.
With regard to the decision regarding Concern 2: Reduction in hours and rosters, the internal review letter stated:
I would have preferred that the initial roster change that was negotiated between you and your colleagues on 9 October 2017 would have been formalised and document at the time to ensure appropriate management oversight and expectations about how this arrangement would operate. I acknowledge that you should have been rostered to your full contracted hours during 15 July to 08 September 2019, however you were provided with three roster options, which you declined. I have decided to make a recommendation to top up your wages between 15 July and 08 September 2019 when you received a total of twenty-five hours less than your contract of employment. This recommendation will be considered by the HHS Chief Executive who is the delegate for this type of payment.
Specifically at 2.1 and 2.4, the internal review letter says:
2.1 From 17 June 2019, you commenced working 06:30 to 13:00 shifts only during the weekday, whilst prior to this date you worked 2 x 16:00 to 20:00 shifts. This change occurred as the informal agreement between yourself and a work colleague about a temporary roster change from October 2017 had been withdrawn by your colleague. As a result, the roster in operation prior to the temporary voluntary agreement was reinstated (default roster). I note that discussions occurred between you and Ms Kempson on 06 June, and 12 and 26 July 2019, during which the changes to rosters were discussed and explained. Further, Ms Mitchell, (letter 16 August 2019) provided explanation of the change and proposed an alternative roster. (Attachment 2)
…
2.4 I have reviewed your payslips and employment contract between 17 July and 08 September 2019 which identified that you received fewer hours than your employment contract of 56 hours per fortnight as follows:
·        15 – 28 July 2019: 49 hours per fortnight remuneration received;
·        29 July to 11 August 2019: 50 hours per fortnight remuneration received;
·        12 to 25 August 2019: 50 hours per fortnight remuneration received; and
·        26 August to 08 September 2019: 50 hours per fortnight remuneration received.
I note that Ms Kempson had a number of conversations with you regarding your rostered hours during the above periods, including:
·        12 July 2019: Ms Kempson advised that you were currently rostered 50 hours per fortnight and she wanted to discuss with you working another weekend shift to fulfil your contracted hours. I note that your were unhappy with working another weekend shift due to your family commitments and you advised that you would call in sick for one of the weekends or "would have to drop shifts and lost money, lose penalty and not pay [your] bills or rent"; and
·        26 July 2019: Ms Kempson talked to you, in the presence of a support person, regarding you being plotted 50 hours per fortnight when your contract was 56 hours per fortnight. Ms Kempson provided you with three options which included temporary hours reduction, consideration of 06:00 start time or picking up a weekend deficit shift to make up 56 hours per fortnight. You declined these options.

Ms Stanley's reasons for appeal address the above paragraphs regarding concern 2:
2.1 I do not have or have ever had or agreed too (sic) (default roster) and it is not documented on the Original Employee Movement Form Permanent or the fraudulent Employee Movement Form Permanent.
…
2.4 The three options
One, cutting shifts to 50 hours per fortnight, in the conversation with Ms Kempson I informed her that this would put me into financial hardship and would not be able to pay my rent and become homeless. (this was not any option).
Two, I offered to negotiate this offer to work a late shift on the Sunday. (this was denied)
Three, Ms Kempson had already implemented the (default roster). I was given no option, and I do not have a default roster documented on my Original Employee Movement Form Permanent or the fraudulent Employee Movement Form Permanent. (this was not a (sic) option because it was implement (sic) without my knowledge.
With regard to the decision regarding Concern 3: bullying from Ms Deanne Mitchell in her position as Acting Director of Nursing (DoN), the internal review decision letter said:
I refer to the Grievance Resolution Policy which provides the definition of harassment (c9 definitions):
"when an employee is subjected to repeated behaviour, other than behaviour which constitutes sexual harassment, by another employee or group of employees that:
·is unwelcome and unsolicited; and
·the person considers to be offensive, intimidating, humiliating or threatening.
Workplace harassment does not include reasonable management action taken in a reasonable way by the Director-General (or delegate) in connection with the employee's employment".
Ms Mitchell's actions regarding your conduct and referee report is expected of her as a manager in the Public Service; this is clearly articulated in both the Recruitment Directive and the Public Service Act 2008. Much of the information you have provided has no relevance to your complaint. Where Ms Mitchell has acted, I find her actions to be reasonable management action taken in a reasonable way. Therefore, your concern that Ms Mitchell has bullied you is not substantiated. SCHHS will take no further action in relation to your complaint regarding allegations of bullying by Ms Mitchell.

Specifically, at paragraph 3.2, the internal review decision letter states:
You raised concerns about comments made by Ms Mitchell which you identified as 'inappropriate behaviour and direct covert bullying'. You stated that on 30 April 2019, Ms Mitchell told you 'why don't you just leave' and on 26 July 2019 that 'as payment we will be taking all our annual leave and LSL'. I have sought information from Ms Mitchell, who has advised that she did not attend meetings with you on the above specified dates and these comments were not made at that time. Ms Mitchell has explained to me that she made a comment to you in relation to exploring other employment options, however, this was approximately three years ago, which does not coincide with your version. In the absences of any evidence to the contrary, this concern cannot be substantiated.
In her appeal notice, Ms Stanley addresses the above paragraph:
Ms Mitchell did state "as payment we will be taking all your annual leave and long service leave" Mr Kempson witness (sic) this. This statement instigated immense stress which I express to Ms Kempson each week. While asking her had she heard anything back regarding the matter for a period of over 12 months.

Submissions for the Respondent
Employee Movement Form Permanent (EMFP)

SCHHS acknowledges changes were made to the EMFP after Ms Stanley had signed it. Further, SCHHS says that no evidence is produced by Ms Stanley that her signature had been fraudulently transferred to another EMFP.
SCHHS sets out their position, in summary:
·The Nurses and Midwives (Queensland Health) Award – State 2015 (the Award) provides an entitlement to an additional 38 hours/1 week of annual leave for nurses who are continuous shift workers at cl 19.2;
·Clause 3 of the Award defines continuous shift work as 'work done by employees where the hours of work are regularly rotated in accordance with a shift roster covering a 24 hour per day operation over a seven day week';
·Ms Stanley's shift roster did not require her to be regularly rotated covering a 24 hour per day operation over a seven day week and she was not entitled to the additional week's leave pursuant to the Award;
·on 22 June 2016, Mr Nick Jones singed an EMFP on Ms Stanley's appointment to her position Assistant in Nursing. The EMFP was also signed by Ms Mitchell in her role as Nurse Unit Manger Extended Service Unit Gympie Hospital, and Ms Stanley;
·the EMFP has a section titled 'Work Contract' which includes a section for the delegate to advise Payroll whether the employee is accruing four, five or six weeks recreation leave;
·the field indicating five weeks was initially ticked but this was amended and the field indicating six weeks accrual was ticked instead;
·this change resulted in Ms Stanley accruing the incorrect leave and leave loading for the period July 2016 until September 2019, resulting in an overpayment;
·Ms Stanley has provided SCHHS a copy of the EMFP that she signed prior to delegate approvals. The SCHHS notes the field indicating 'Continuous Shift Work' was ticked incorrectly. The SCHHS also notes on this form the annual leave accrual field is ticked correctly at five weeks;
·The SCHHS notes the name of the delegate has been changed on the final page of the EMFP, from Ms Leuwin Ferguson, former Director Gympie Health Service, to Mr Nick Jones, Acting DoN Gympie Hospital; and
·Ms Chettleburgh apologised to Ms Stanley for this error.

SCHHS says that at some point which the SCHHS has been unable to identify, and after Ms Stanley signed her EMFP, the form was amended in error to increase her annual leave entitlement. This resulted in an overpayment that was later waived by the SCHHS.
SCHHS says that no evidence is provided that the changes to the form meet the threshold of corrupt conduct defined by s 15(1) of the Crime and Corruption Act 2001 and that Ms Stanley's concerns were considered in full when Ms Chettleburgh undertook the internal review.
Statement made by Ms Mitchell regarding taking leave as payment
Ms Mitchell advised that she did not meet with Ms Stanley on 26 July 2019 and did not make the comment Ms Stanley says was made.
SCHHS says that it was not clear in Ms Stanley's internal grievance that there was a witness to this. On 11 December 2020 the SCHHS sought clarification from Ms Kempson who stated that she has no recollection of Ms Mitchell making the statement.

Rostering

The SCHHS sets out the following with regard to Concern 2: Reduction in hours and rosters:
·On 24 April 2017 Ms Stanley and a work colleague voluntarily entered an informal rostering agreement where Ms Stanley worked her colleague's Thursday evening shift, and instead of working every weekend, Ms Stanley worked alternative weekends, with her colleague working the other;
·in June 2019 Ms Stanley's work colleague withdrew from this voluntary informal arrangement;
·on or around 4 June 2019, Ms Kempson advised Ms Stanley that the roster that was in place prior to the informal arrangement would be reinstated;
·the following meetings were held in 2019 with Ms Stanley and her managers to negotiate a new, mutually agreeable rostering arrangement: 4 June; 6 June; 13 June; 12 July; 26 July, and 27 August;
·during the 26 July 2019 meeting three rostering options were provided to Ms Stanley. These were rejected by Ms Stanley;
·on 16 August 2019 Ms Mitchell wrote to Ms Stanley providing a 14day consultation period to provide feedback for a new roster proposal; and
·on 20 August 2019, Ms Liz Wilson, former Director Nursing Services, Medical Services Group, provided Ms Stanley approval in part for her flexible working request.
SCHHS submits that it complied with the Directive 02/17 Managing Employee Complaints (the Directive) and considers that process undertaken, and outcomes provided to Ms Stanley, as fair and reasonable based on the information available to the decision makers.
Submissions of Ms Stanley in reply to the SCHHS
Ms Stanley filed submissions on 7 January 2021.

Overpayment

With regard to the overpayment being waived, Ms Stanley says that she acknowledges this, however, she has requested official evidence documenting the overpayment in a written statement from payroll and she has not received that document.
Ms Stanley says that the document (EMFP) was changed without her permission and consent and that she did not witness or initial the changes made.
Ms Stanley says that she did not sign the document in question and reasonable management of the document was not followed.
Ms Stanley submits that she was not fully informed of the overpayment process and she had to source information herself.
Ms Stanley maintains that there was a meeting on 26 July 2019 and it was attended by Ms Mitchell, Ms Kempson and Ms Williams (a witness Ms Stanley invited to attend). Ms Stanley repeats that Ms Mitchell told her that all of her annual leave and long service leave would be taken as payment for the overpayment.
Ms Stanley says that at the meeting, Ms Mitchell informed her that the 'clerical error' had occurred and 'as payment we will be taking all your annual leave and long service leave'. Ms Stanley says that following that meeting, she contacted Streamline, HR to find out the facts before the next meeting on 4 October 2019.
Ms Stanley says that the meeting took place and that the statement of Ms Kempson that she has no recollection of Ms Mitchell making the statement about taking the annual leave and long service leave is a lack of reasonable management action regarding no documentation or file notes regarding the meeting agenda.
Rosters
Ms Stanley says that she has never attended a meeting with colleagues regarding any changes to the roster.
Ms Stanley says that she does not have a default roster, there is not documentation of default shifts in the EMFP and that the default roster was implemented before she had time to respond to the letter.
Further submissions of Ms Stanley
On 13 January 2021, Ms Stanley provided further submissions. These submissions amended typographical errors, clarified some of her earlier submissions and attached approximately 30 documents not previously submitted.
With regard to rosters, Ms Stanley provides information about the roster she was allocated when she commenced work with SCHHS on 18 July 2016 and then the change to the roster from 14 August 2016 until the roster was changed by Ms Mitchell.
Ms Stanley says that she did not meet with or speak to a fellow Assistant in Nursing colleague regarding an informal rostering agreement in April 2017. Ms Stanley says that she was informed by Ms Kempson of changes to the roster. Ms Stanley says she was not offered negotiation and she did not mutually agree to the plotted rostering arrangement.
With regard to the meeting on 26 July 2019 with Ms Kempson, Ms Mitchell and her witness, Ms Williams, Ms Stanley says that she did not reject the three rostering options. She says that she requested the alternative rosters to be provided in writing.
Ms Stanley attaches a letter she sent to the Queensland Ombudsman for assistance in getting the matter addressed. Ms Stanley says that in her opinion, the matter has been inappropriately dealt with by management since 18 June 2016.

Further submissions of the SCHHS

SCHHS says that the new documents provided by Ms Stanley were not available to the decision maker at the time of the internal review. The documents have now been provided to the decision-maker for review.
In response to Ms Stanley's submission about the meeting which took place where she was told all her annual leave and long service leave would be taken, SCHHS says:
·SCHHS has no record of a meeting held on 26 July 2019 between the four participants identified by Ms Stanley;
·Ms Mitchell states she did not attend a meeting with Ms Stanley on 26 July 2019 and did not make the comment regarding taking the annual leave and long service leave. This matter is addressed in the Internal Review Outcome letter;
·Ms Kempson says she did not witness Ms Mitchell make the comment regarding taking annual leave and long service leave at any time between June and August 2019;
·Ms Kempson's file note of the 26 July 2019 confirms that Ms Mitchell was not in attendance;
·Ms Kempson says that the meeting was about the roster and options as to how best to accommodate Ms Stanley's contracted hours. Ms Kempson says there was no conversation about annual leave or long service leave; and
·Ms Stanley's written notes identify the parties present at the meeting, which do not include Ms Mitchell.
SCHHS confirms that no annual leave or long service leave has been debited from Ms Stanley's leave balances and the overpayment has been waived.
With regard to the signed affidavit provided by Ms Stanley which says the EMFP was 'changed without my permission and consent', SCHHS refers to the Internal Review Outcome letter, in which Ms Chettleburgh states, 'It is not possible to identify who made the change to the EMFP and the Health Service apologises for this administrative error…'
With regard to Ms Stanley's submissions that she did not enter a voluntary roster in April 2017, SCHHS says that it originally identified the roster as commencing on 24 April 2017 but this should be 09 October 2017.
SCHHS confirms that Ms Stanley was working alternate weekends from 15 August 2016 until the voluntary rostering arrangement was terminated on or around 4 June 2019. Following this, Ms Stanley was required to work a total of four consecutive weekends.
SCHHS attached a table addressing the additional documents provided in Ms Stanley's final submissions. SCHHS says that a number of the documents have no relevance to the substance of Ms Stanley's complaint. Further, a number of the documents are relevant to matters already addressed.
Consideration

Ground of Appeal: Decision Concern 1 - Incorrect Annual Leave and Loading Accrual – 'Overpayment'

It is clear from the material, that at some point following Ms Stanley signing the EMFP at commencement of her employment, the form was changed to reflect an annual leave accrual from five to six weeks. The names of the manager and delegate were also changed.
I cannot find anything in the material before me to indicate that SCHHS attributed this change to Ms Stanley or found her to be personally at fault for the change to the form.
It is also clear to me that through no wrongdoing of her own, Ms Stanley found herself in a situation where she had accumulated more annual leave and leave loading than she was entitled to under the Award.
The evidence before me demonstrates that SCHHS undertook investigations and were unable to identify who it was that made the change to the form. The change to the form is what ultimately led to the overpayment. SCHHS determined that it was an administrative error and apologised for the error.
It appears that negotiations took place regarding the overpayment and what would be needed to recover that overpayment from Ms Stanley. Ms Stanley and her representative met Ms Kempson and Ms White (Director of Nursing) to discuss the matter but it was unable to be resolved.
The internal review letter outlines the process which then occurred. SCHHS has a legislative requirement to recover any amount paid which the employee is not entitled to. Because the overpayment was greater than 12 months, Ms Stanley's agreement was required. Ms Stanley did not agree and declined to sign the form.
Ms Stanley's grievance included a statement that she had been 'intimidated and coerced' to sign her proposed new employment movement form, however the evidence before me indicates that Ms Stanley did not sign the form. There is no evidence before me to contradict the internal review finding that Ms Stanley's concern that she had been coerced to sign the form was not able to be substantiated.
Following this, the Chief Finance Officer was asked to review the circumstances of the overpayment and exercised her delegation to write off the annual leave and loading overpayment. On 17 July 2020, Ms Stanley was advised that the overpayment would not be pursued.
The internal review decision with regard to the overpayment is set out above at [8].
I understand that the experience of finding out about the overpayment and being asked to agree to the amount being recovered caused Ms Stanley great concern. However, in circumstances where the SCHHS has; acknowledged the administrative error which led to the overpayment; has apologised for the error and determined not to pursue the overpayment, Ms Stanley has received an additional weeks' leave and higher leave loading between July 2016 and September 2019 which she will not have to pay back.
Ms Stanley's internal review request letter stated that she required information about the exact amount she owed and the details of how the amount accrued. The internal review letter provides Ms Stanley with some of this information and details on how to access information she still requires once she has reviewed her payslips.
With regard to the issue of corrupt conduct, there is nothing in the material provided to me to indicate that anything fraudulent occurred with regard to the form. It is the case that on occasion, administrative errors will be made by those filling in and handling forms. Mistakes can happen. In this case, the error has been recognised and action has been taken to apologise and take corrective action.
The internal review decision that Ms Stanley had not been disadvantaged and that no further action would be taken with regard to this concern was fair and reasonable.
Ground of Appeal: Rosters
Ms Stanley's appeal notice explains her response to options offered to her but does not provide details about what it is specifically regarding the internal review decision relating to 'concern 2' that she appeals.
The evidence demonstrates that for a period of time, Ms Stanley was involved in a temporary informal roster arrangement with a colleague. When the colleague withdrew from the arrangement, the roster existing prior to the informal arrangement was reinstated.
The evidence available to me indicates that a number of meetings were held with Ms Stanley putting forward a range of roster options to her
It appears that over a series of meetings and through a range of communication, Ms Stanley raised concerns with the options put forward to her. Roster proposals were made in an attempt to address some of the concerns raised by Ms Stanley.
On 29 August 2019, Ms Stanley submitted a Flexible Work Arrangement request. The request Ms Stanley made was to work 8-hour shifts and have every second weekend off. Paragraph 2.3 of the internal review letter states that 'the outcome of this FWA was for you to work alternative weekends and 7-hour shifts, and reasons for this decision were provided in the outcome letter'.
Following changes to Ms Stanley's roster between 17 July and 08 September 2019, Ms Stanley received fewer hours than her employment contract of 56 hours per fortnight. Paragraph 2.4 sets out the hours that Ms Stanley worked during this time.
The evidence demonstrates that some options were put to Ms Stanley which would enable her to work her contracted 56 hours but that these options were declined.
The outcome of the review was that a recommendation was made to top up Ms Stanley's wages from 15 July 2019 to 08 September 2019 in recognition that during that period she received twenty-five hours less than her contracted hours of employment. More recent submissions confirm that the recommendation was adopted and that Ms Stanley has received payment for those hours.
A review of Ms Stanley's payslips showed that for the pay period 09-22 September, Ms Stanley's contract was for 44 hours per fortnight but she was remunerated for only 43 hours. On 08 October, this was corrected to include an additional hour for that fortnight.
The evidence available to me demonstrates that several options were explored with Ms Stanley regarding her roster. Ms Stanley declined the options and this meant that for the period 15 July to 08 September 2019, she worked less hours than her contract. A decision was made to pay Ms Stanley for these hours. This is a fair and reasonable outcome regarding that period of time.
Likewise, I note that the pay period of 09-22 September 2019 was rectified with an additional one hour being added to the hours for that fortnight by way of correction.
The internal review decision regarding rosters is included above at [10]-[11].
It is not an unusual practice for rosters to change and for employees to be consulted about their roster. Correspondence to Ms Stanley inviting her to provide feedback on the proposed roster has been provided to me. The letter identifies that the proposed roster complies with the Award, and the best practice rostering guidelines. There is no information before me that the rosters implemented by SCHHS in relation to Ms Stanley do not comply with the relevant industrial instruments or any accompanying guidelines or policies.
I have reviewed all of the evidence regarding the rosters, the attempts to negotiate the rosters and the contracted hours and hours worked by Ms Stanley and the decision to pay Ms Stanley for the 25 hours she did not work as she rejected the shifts SCHHS had offered. The internal review decision regarding this concern was fair and reasonable.
Ground of Appeal 3: Statement made to Ms Stanley regarding taking her annual leave and long service leave.
It is unclear what Ms Stanley's reason for appeal listed as 3.2 on her appeal form is seeking to address other than that she does not accept the finding made in the internal review that Ms Mitchell did not say to her, 'as payment we will be taking all of your annual leave and long service leave' and that Ms Kempson had no recollection of witnessing this being said.
It is clear to me having reviewed the material that Ms Stanley maintains that this was said to her on 26 July 2019. It is equally clear to me that Ms Mitchell denies saying it and that Ms Kempson denies witnessing it being said. It also seems that Ms Mitchell did not attend the meeting at which Ms Stanley says the statement was made.
In the absence of any reliable evidence that Ms Mitchell was at the meeting or made the statement as alleged, it was fair and reasonable for the decision maker to determine that the concern could not be substantiated.
Concern 3 in the internal review decision letter contains responses to many more matters than the statement Ms Stanley says was made to her about taking her annual and long service leave. Ms Stanley's appeal notice and submissions do not address Concern 3 other than as it relates to that specific comment made by Ms Mitchell.
In the absence of any specific grounds of appeal regarding other aspects of Concern 3, I consider that the internal review decision regarding Concern 3 was fair and reasonable.
Other matters
Ms Stanley's internal review request raised a concern that Ms Mitchell was the delegate considering her initial grievance. The material before me indicates that at the time the initial grievance was lodged, Ms Mitchell asked Ms Stanley if she objected to Ms Mitchell being the delegate to consider the grievance. The evidence is that Ms Stanley did not raise this matter until she lodged the internal review.
This matter is addressed in the internal review letter at paragraph 1.1:
On 29 June 2020 you emailed Ms Mitchell with your Stage 1 Grievance. On 14 July 2020, Ms Mitchell sent an email to you which included the following request:
"I am continuing to review your grievance and I am wanting to check that you are comfortable with myself continuing this whilst I am in the Acting Director of Nursing/Facility Manager role? If not, would you prefer an independent Nursing Director from the SCHHS to review?"
I note that you did not provide a response to this question and instead referred to clause 8.2.3 of the Grievance Resolution Policy. Clause 8.2.3 of the Grievance Resolution Policy relates to the formal grievance process; as your grievance was your initial step to resolve your concerns, SCHHS is required to address these concerns in accordance with Stage 1, as described in clause 8.2.1 of the Grievance Resolution Policy which aims to resolve individual grievances through local and informal action. You lodged your grievance with Ms Mitchell and did not provide any objection to Ms Mitchell managing this grievance at the time, despite Ms Mitchell requesting your agreement for her to manage your grievance. I note you only raised these concerns about Ms Mitchell's involvement following her response being provided to you. Therefore based on the information available to her at the time, I consider Ms Mitchell's involvement in your stage 1 grievance to have been reasonable.
The involvement of Ms Mitchell in considering the Stage 1 grievance is not addressed in Ms Stanley's grounds of appeal or submissions.
It appears to me that Ms Chettleburgh undertook a thorough review of Ms Stanley's grievance and Ms Mitchell's actions – both managerial and in responding to the Stage 1 Grievance.
There is nothing in the material provided to me to indicate that the outcome of Ms Stanley's grievance would have been different had a alternative delegate undertaken the initial Stage 1 grievance process.
Outcome
The decision appealed against is confirmed.
The appeal is dismissed.

[2021] QIRC 58

17 February 2021