Stocker v State of Queensland (Queensland Health)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Stocker v State of Queensland (Queensland Health) [2023] QIRC 271
PARTIES:	Stocker, Sarah-Jayne (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2022/1016
PROCEEDING:	Public Sector Appeal – Fair Treatment Decision
DELIVERED ON:	19 September 2023
MEMBER: HEARD AT:	Hartigan DP On the papers
ORDER:	1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and, in lieu thereof, is substituted with a decision that allegation one and allegation two are not substantiated. *2. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 15 December 2022 be revoked.*
CATCHWORDS:	INDUSTRIAL LAW – PUBLIC SECTOR APPEAL – appeal against a fair treatment decision –– where allegations against Appellant substantiated – where Appellant claims the disciplinary finding is unfair and unreasonable– whether the disciplinary finding decision fair and reasonable –decision not fair and reasonable – decision set aside – stay of decision revoked
LEGISLATION: CASES:	Industrial Relations Act 2016 (Qld) s 562, s 566 Public Interest Disclosure Act 2010 (Qld) Public Sector Act 2022 (Qld) s 187 and s 194 Public Service Act 2008 (Qld) (now repealed) Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Briginshaw v Briginshaw (1939) 60 CLR 336 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Vega v Hoyle & Ors [2015] QSC 111

Reasons for Decision

Introduction

Ms Sarah-Jayne Stocker is employed by the State of Queensland (Queensland Health) ('the Department') in the position of Enrolled Nurse Advance Skills at Biloela Hospital.

On 21 April 2022, the Ethical Standards Unit ('ESU') referred a matter of "suspected corrupt conduct" to the Department which included a file note authored by an unidentified witness ('the File Note'). The ESU had determined that the witness statement constituted confidential information pursuant to the Public Interest Disclosure Act 2010 ('the PID Act').
By letter dated 5 May 2022, the Department advised Ms Stocker that she was suspended from duty on normal remuneration with immediate effect. This decision was made on the basis that the Department held a reasonable belief that Ms Stocker is liable to disciplinary action pursuant to s 137(1)(b) of the Public Service Act 2008 (Qld)[1] with respect to the matter referred by the ESU.
[1] Sections 137(1)(b) of the Public Service Act 2008 (Qld) is in the same terms as s 101(1)(a) the Public Sector Act 2022 (Qld), respectively.
By letter dated 15 September 2022, Ms Stocker was asked to show cause with respect to the following two allegations about her conduct and behaviour:
Allegation one
On 12 April 2022, at approximately 1500 hours, you knowingly aided in the administration of a fraudulent COVID-19 Polymerase Chain Reaction (PCR) test for an officer of the Queensland Ambulance Service (QAS), namely [redacted] ('Mr T'), Paramedic.
('allegation one')
Allegation two
On 12 April 2022, at approximately 1500 hours you collected a specimen, particularly Polymerase Chain Reaction (PCR) test, and fraudulently applied patient identification labels that did not the match the patient of whom the PCR test was taken.
('allegation two')

On 23 September 2022, Ms Stocker responded to the show cause notice.
By letter dated 24 November 2022, the Department issued a decision substantiating allegation one and allegation two ('the decision'). The Department informed Ms Stocker that it was giving serious consideration to imposing disciplinary action of a reduction in remuneration from pay level NGR4.2 to NRG4.1 for a period of six (6) months.
No decision has yet been made with respect to the imposition of the proposed disciplinary action.
On 9 December 2022, Ms Stocker filed a notice of appeal against the decision. Ms Stocker relies on the following grounds in support of her appeal, as relevantly summarised:
(a)the Department relied on ''one heavily redacted and anonymous witness statement'' which provides ''no evidence'' to substantiate the allegations;
(b)that the Department only had regard to one anonymous witness statement when there were ''three (3) QAS officers present'' on 12 April 2022;
(c)that Ms Stocker is unable to ''test the reliability'' of the witness statement ''without knowing who wrote it''; and
(d)the decision is ''extremely unfair'' as it will ''detrimentally impact [Ms Stocker's] nursing career''.
This Commission ordered that the decision subject of the appeal be stayed until the determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act').
The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld) ('the PS Act'), which provides than an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission.
Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act. Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2] An appeal under Ch. 7, Pt. 1 of the Public Service Act 2008 (Qld), is not by way of re-hearing but, rather, involves a review of the decision arrived at and the decision making process associated with it.[3]
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).
For the reasons contained herein, I have found that the decision was not fair and reasonable.
The decision subject of the appeal
The decision maker provided the following reasons in support of the decision to substantiate allegation one and allegation two:
My findings
I have carefully considered all the material before me including your response and I have determined that Allegation one is substantiated on the balance of probabilities.

In making my decision, I have considered the following matters:
1. It is not in dispute that:
a.On 12 April 2022, you were working as an Enrolled Nurse Advanced Skill (ENAS) at Biloela Hospital. You have been employed by the Central Queensland Hospital and Health Service (the Health Service) since 14 June 2021 and have worked at Biloela Hospital since this date.
b.On 12 April 2022, you were rostered to work 0830 hours to 1700 hours.

2.    On the morning of 12 April 2022, [redacted] ('Mr T') Queensland Ambulance Service (QAS) Paramedic attended the Biloela Hospital in his Queensland Ambulance Service uniform and asked you for a COVID-19 Polymerase Chain Reaction (PCR) test for himself, to which you agreed but requested that he return later that day.
3.    On or around 1500 hours that same date, [redacted] ('Mr T') returned to Biloela Hospital.
4.    On or around 1500 hours, you exited the Biloela Hospital and presented to an ambulance parked next to a tree, which you describe as the large mango tree.
5.    You have confirmed that both [redacted] ('Mr T') and [redacted] Mr E, QAS Paramedics were present at the ambulance, with another Paramedic sitting in the driver's seat of the ambulance who you name to be [redacted] ('Mr P').
6.    The witness submits that once you arrived at the ambulance, both you and [redacted] ('Mr E') entered the ambulance. You have denied this and have indicated that you were speaking with [redacted] ('Mr P') through the front passenger window.
7.    I have considered your response to the allegation that you did provide a COVID PCR test in the form of a swab, to [redacted] ('Mr T') and your admission that you did not undertake the swab test yourself and did not supervise the swab test being taken.
8.    I have also considered your submission that you have had a lapse in judgement, and that you trusted [redacted] ('Mr T') to undertake the PCR test on himself on the basis that he had asked you for the test therefore you submit you had no reason to believe the test was for any other person but him. You cannot confirm if [redacted] ('Mr T') undertook the PCR test himself.
9.    I have taken into account the statement submitted by the witness to the alleged incident who submits that they observed both you and [redacted] ('Mr E') enter the back of the ambulance, and that [redacted] ('Mr E') immediately left after the test had been completed.
10. You do not dispute that [redacted] ('Mr E') was present when you arrived at the ambulance; however, have not provided any alternate version of events to explain [redacted] ('Mr E')'s presence and involvement during the incident that refutes or othewise discredits the account submitted by the witness. I do not accept that the witness would fabricate a version of events which indicates that [redacted] ('Mr E') in fact took the COVID 19 PCR test instead of [redacted] ('Mr T'). I have no reason to discredit the allegation and am of the view that the witness does not have anything personally to gain as a result of raising this allegation against you. As such, I prefer the witnesses version of events over your denial of wrongdoing.
11. You further submit that you always label pathology forms before attending to a test and on this occasion, advise that you had already labelled and signed the pathology request form and the swab prior to leaving the Biloela Hospital.
12. I have determined it more likely than not, that you were aware of why [redacted] ('Mr E') was present and that [redacted] ('Mr T') did not take the COVID 19 PCR test himself but rather, [redacted] ('Mr E') took the PCR test fraudulently. I have therefore formed the view that you did knowingly aid in the administration of a PCR test which was fraudulent in nature.
On the basis of my finding in relation to Allegation one, I have determined that pursuant to section 187 (1 )(g) of the Act you are guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a) of the Act.
…
My findings
I have carefully considered all the material before me including your response and I have determined that Allegation two is substantiated on the balance of probabilities.
In making my decision, I have considered the following matters:
1.   It is not in dispute that on 12 April 2022:
a.[redacted] ('Mr T') presented to the Emergency Department of Biloela Hospital.
b.You labeled the pathology form and specimen container with the personal details of [redacted] ('Mr T').

2.   I have considered your submission that through your 'own poor judgement and trust in a fellow Queensland Health Employee, [you] allowed [redacted] ('Mr T') to complete the swab himself without supervising' the collection of the specimen.
3.   The Pathology Queensland request form for a COVID-19 swab, under the name of [redacted] ('Mr T'), was clearly signed and dated by you as the 'collector'; however, through your own admissions, you have conceded that you did not in fact administer the test yourself and whilst I accept that you 'collected' the test from [redacted] ('Mr T') before then returning to Biloela Hospital, I have no information or evidence which leads me to form a reasonable belief that you were unaware of the fraudulent activity that had occurred, or that you were oblivious to your involvement in that activity.
4.   Whilst you submit that you did not enter the ambulance and after providing the PCR swab to [redacted] ('Mr T') you then turned to talk to QAS officer [redacted] ('Mr P') through the passenger side window, it is pertinent that I consider the submission of the witness. The witness states 'Once at the ambulance, [redacted] ('Mr E') and Sarah Stocker got into the back of the ambulance.' I do not believe that the witness would go so far as to deliberately falsify such a serious allegation against another person.
5.   You state that you did not complete any pathology paperwork for [redacted] ('Mr E'), as he was not the person who requested the COVID 19 PCR test and not the person you believed the swab was to be used on.
6.   In the absence of any alternate reason from you as to why the witness would fabricate such an allegation, I prefer the witnesses version of events over your version of events which simply deny knowledge and involvement of applying patient identification labels to a test that did not match the patient of whom the PCR test was taken.
7.   I am of the view that the witness does not have anything to personally gain as a result of reporting this incident, and that you collected a specimen, particularly a PCR test and also placed patient identification labels on that test, with the knowledge that the labels were for [redacted] ('Mr T'), and not for [redacted] ('Mr E') of whom the test was performed on.
On the basis of my finding in relation to Allegation two, I have determined that pursuant to section 187 (1 )(g) of the Act you are guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a) of the Act.
…

Given the nature of the findings and the heavy reliance on the redacted File Note ('the File Note'), I will refer to it in its entirety below. It is also relevant to note, that other than the redacted File Note of the unidentified witness and the written response of Ms Stocker, there is no evidence that any other attempts were made to gather relevant information including by obtaining a version of events from other relevant witnesses.

Relevant legislation

Section 194 of the Public Service Act 2008 (Qld)[4] provides for decisions against which appeals may be made and relevantly includes:
[4] Now repealed.
194 Decisions against which appeals may be made
(1)An appeal may be made against the following decisions –
…
(eb)a decision a public service employee believes is unfair and unreasonable (a fair treatment decision);
…
Section 187 of the Public Service Act 2008 (Qld sets out the grounds for discipline and disciplinary action generally as follows:
187     Grounds for discipline
(1)A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
(a)engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
(b)been guilty of misconduct; or
(c)been absent from duty without approved leave and without reasonable excuse; or
(d)contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
(e)used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
(ea)contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—
(i)       failing to disclose a serious disciplinary action; or
(ii)      giving false or misleading information; or
(a)contravened, without reasonable excuse, a provision of this Act; or
(b)contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
…

Directive 14/20: Discipline ("Discipline Directive") came into effect on 25 September 2020.[5] The purpose of the Discipline Directive, amongst other things, is to outline the process for managing disciplinary action under the Public Service Act 2008 (Qld).
[5] Now repealed.
Clause 8.3 of the Discipline Directive relevantly provides the process that must be followed in commencing a show cause process for a disciplinary finding as follows:
(a)     The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding):
(b)     Written details of each allegation in clause 8.3(a) must include:
(i)       the allegation
(ii)      the particulars of the facts considered by the chief executive for the allegation
(iii) the disciplinary ground under section 187 of the PS Act that applies to the allegation.
(c)      A copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence.
(d)     The chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension.
(e)      If the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 8.3(d) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
Clause 8.4 of the Discipline Directive provides for a decision on grounds as follows:
(a)     A chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities.
(b)     The chief executive must advise the employee of the chief executive’s finding in relation to each allegation included in the show cause notice on disciplinary finding.
(c)      For each finding in clause 8.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established.
(d)     The employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding.
(e)      If the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 8.5) and/or management action implemented, or to take no further action.
If the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.
Clause 8.5 (d) of the Discipline Directive sets out the factors the chief executive should consider when proposing appropriate and proportionate disciplinary action. The considerations are as follows:

(i)the seriousness of the disciplinary finding

(ii)the employee’s classification level and/or expected level of awareness about their performance or conduct obligations

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

Whether the decision was fair and reasonable

Ms Stocker submits that the decision to substantiate allegation one and allegation two was unfair and unreasonable. The Department submits that it was open to the decision maker on the information available to substantiate, on the balance of probabilities, allegation one and allegation two.
In this appeal, I must determine whether the decision to substantiate the allegations was fair and reasonable. For the reasons set out further below, I have determined that the decision was not fair and reasonable.
Allegation one
Ms Stocker submits that the Department's reliance on an ''anonymous and heavily redacted witness statement" (presumably the parties' reference to the "witness statement" is a reference to the File Note) in substantiating allegation one ''prohibits natural justice or procedural fairness'' and relies on this as a ground to argue that the decision was not fair or reasonable.
In her submissions, Ms Stocker notes that the decision maker preferred the witness's version of events over Ms Stocker's denial of allegation one because they were of the view that the witness did not "have anything personally to gain" in raising the allegation. Ms Stocker contends that she was disadvantaged in providing a response to the allegation as ''she is unaware of the witness's perspective or motivation to provide a statement''. Ms Stocker further submits that it is unfair if the Department is aware of the witness's identity and she is not.
In its reply submissions, the Department submits, having regard to the provisions of the Public Interest Disclosure Act 2010 (Qld)[6] ('PID Act') and its obligations under both the Information Privacy Principal and the National Privacy Principals, that it was reasonable in the circumstances of this matter to not disclose the witness's identity.
[6] Namely s 65.

With respect to the redacted witness statement, Ms Stocker refers to the decision of Vega v Hoyle & Ors[7] as authority for the proposition that there will be a breach of the rules of natural justice when an employee, the subject of an investigation, is only provided with extracts, rather than the entire content, of the interviews conducted. Ms Stocker contends that if the decision maker relied on the entire content of the witness statement in making their decision, she should have been afforded the same opportunity to respond to the entire content of the witness statement. Alternatively, if the decision maker was not in possession of the unredacted witness statement, Ms Stocker contends that the decision maker's reliance on this may be viewed as unreliable. Ms Stocker further submits that statements should have been obtained from the three other QAS officers present on 12 April 2022.
[7] [2015] QSC 111.
Although Ms Stocker admits to not personally conducting the COVID-19 Polymerase Chain Reaction ('PCR') test on Mr T, Ms Stocker contends that this admission should not ''determine that she was aware of any potentially fraudulent activity''. Further, Ms Stocker submits that it is not unusual for nurses to conduct PCR tests in the car park for members of the public.
Ms Stocker submits that where serious allegations are made ''evidence must indicate it is probable that the Appellant knowingly acted as described, not just possible'' and that regard should be had to the balance of probabilities test in Briginshaw v Briginshaw[8]. Ms Stocker contends that there is no evidence to support the substantiation of allegation one.
[8] (1939) 60 CLR 336.
The Department contends that the redacted witness statement provided Ms Stocker with ''sufficient information'' to respond to allegation one. Further, the Department submits that the decision maker considered the same redacted witness statement provided to Ms Stocker. In its submissions, the Department notes that Ms Stocker did not raise concerns regarding the redacted witness statement prior to lodging the appeal.
The Department considers that Ms Stocker's admission that she did not conduct the PCR test on Mr T provided the decision maker with a ''reasonable belief that [Ms Stocker] knowingly attended the ambulance to engage with Mr T and Mr E in a way that was fraudulent''. Further, the Department submits that the decision maker was not persuaded by Ms Stocker's version of events and that it held no information to demonstrate that the witness ''fabricated'' their version of events. In its submissions, the Department provides the following in support of its position:

…
19. The Respondent has noted the explanation provided by the Appellant does not align with the specific details provided by the witness which puts the credibility of her statements in question, including:
a)The witness statement clearly stated that the Appellant and [redacted] Mr E got into the back of the ambulance. The Appellant denies entering the ambulance and has not provided any evidence to lead the Responded (sic) to form doubt that she did not enter the ambulance.
b)Despite the Appellant being fully aware of the PCR testing requirements, she knowingly failed to comply to administer, or witness the test in this instance.
c)In the Appellant's response to the first show cause notice, she advised that she was talking to QAS paramedic, [redacted] ('Mr P') (the ambulance driver) through the ambulance passenger window. In the Notice of Appeal paragraph 10 she advises that she was chatting with [redacted] ('Mr P') through the driver's side window.
d)The witness statement clearly states that [redacted] Mr E immediately left after the test had been completed. The Appellant's response was that she said goodbye to all three paramedics after 5 or 10 minutes.
…

In her reply submissions, Ms Stocker submits that she did not get into the back of the ambulance with Mr E as stated by the witness. In the absence of CCTV footage or statements from the other QAS officers to corroborate the witness's version of events, Ms Stocker contends that it is unfair and biased for the QAS to prefer the witness's version of events over Ms Stocker's.

Further, Ms Stocker submits that although she did not raise concerns regarding the redacted witness statement prior to lodging the appeal, Ms Stocker notes that in her response to the allegations dated 23 September 2022, "the emphasis on the extent of the redaction was highlighted". [9]
[9] "Attachment C" to Appeal Notice.

In considering this matter, it is important to keep the elements of allegation one in mind. Relevantly, allegation one contends, inter alia, that Ms Stocker "knowingly aided in the administration of a fraudulent COVID-19…(PCR) test for… Mr T, Paramedic".
To "knowingly aid" in an action there must be established an element of intent. Given the seriousness of the allegation, there must be cogent evidence that Ms Stocker intended to administer a fraudulent PCR test. Ms Stocker denies such an allegation.
It is apparent that the decision maker relied on a heavily redacted file note of an anonymous source. There is no evidence that the anonymous source was interviewed or that the decision maker had satisfied themselves as to the veracity of the information provided in the File Note other than by reading it. The File Note is clearly a significant document in this matter, and perhaps made all the more significant due to its lack of detailed and particularised information.
Given the significance of the information (or lack thereof) contained in the File Note, it is convenient to set it out, as it appears, in the material as follows:

In addition to the identity of the author of the redacted File Note being withheld, there is no information provided as to how the author knew the identity of the persons they refer to in the File Note or the location of the author of the File Note when allegedly viewing the events (if indeed they did view the events, given on the face of the redacted File Note, there is no positive assertion to that effect).
The heavy redaction of the File Note raises more questions than it answers. Ms Stocker was placed at a significant disadvantage of being required to respond to such a document in circumstances where very serious allegations were being levelled against her. The reliance on such a heavily redacted document denied Ms Stocker with a proper opportunity to meaningfully respond to the allegations. As such, I consider the decision making process was procedurally deficient.
Further, it is difficult to comprehend how, in reliance on such a heavily redacted anonymous File Note, the decision maker is able to assert that the evidence of the "witness" is preferred as follows:
"I do not accept that the witness would fabricate a version of events which indicates that [redacted] ('Mr E') in fact took the COVID-19 PCR test instead of [redacted] ('Mr T'). I have no reason to discredit the allegation and am of the view that the witness does not have anything personally to gain as a result of raising this allegation against you. As such, I prefer the witnesses version of events over your denial of wrongdoing".
This passage raises two matters which supports a conclusion that the substantiation of allegation one was unfair and unreasonable.
Firstly, there is no factual foundation provided that identifies or places Ms Stocker on notice, as to how and why the decision maker is able to make an assessment of the credibility of the author of the anonymous File Note. An inference could be drawn that in order to make such an assessment, the decision maker either knew the identity of the author of the File Note and that information was not disclosed to Ms Stocker, or, conversely, the decision maker made a factually unsupported assumption about the credibility of the author of the File Note.
Secondly, the passage identifies an error in the decision on the facts that were before the decision maker. Relevantly, the decision maker asserts that "… a version of events that indicates that Mr E in fact took the COVID-19 PCR Test instead of Mr T…". However, such a view can only be formed based on inferences rather than direct evidence. The author of the File Note does not state that they observed Mr E taking the test instead of Mr T. Rather, they state that Mr E and Ms Stocker "got into the back of the ambulance". After four redacted lines the File Note then states that, "[redacted] Mr E then immediately left after the test had been completed…". There is no direct evidence, and it is certainly not stated in the File Note, that Mr E took the test. Further, it is not directly stated that Mr T did not take the test.
This can be contrasted with Ms Stocker's written response to the allegation wherein she provides a detailed account of the events that occurred that afternoon including by denying that she went into the back of the ambulance. Ms Stocker makes a frank admission that she handed the PCR test to Mr T and that she did not administer the swap and permitted him to do so without observing him.
Further, there appears to have been no attempt by the Department to seek relevant information about the allegations from other witnesses who were present.
It is not contentious that three QAS Officers were allegedly involved in this matter and would, presumably, be in a position to provide relevant information with respect to the allegation, yet there appears to have been a failure by the decision maker to gather relevant information going to the heart of the matter, or, if attempts were made to gather the information and failed, Ms Stocker was not advised of that.
Given the seriousness of the allegations, there is a requirement that a decision be based on cogent and direct evidence. I am not satisfied that the decision maker had before them cogent and direct evidence that Mr E took the COVID-19 PCR test and further, that Mr T did not take the COVID-19 PCR test.
Further, I consider the decision maker's reliance on the redacted anonymous File Note and the failure to obtain the relevant evidence, resulted in a process that was procedurally unfair.
Consequently, I have formed the view that the substantiation of allegation one was not fair and reasonable.
Allegation two
With respect to allegation two, Ms Stocker submits that she provided a "genuine response" during the show cause process and that because she "trusted" Mr T to take the PCR test without supervision, she "had no reason to believe" that the PCR test was to be used on Mr E. In support of her position, Ms Stocker submits that on arrival at the ambulance, she gave the PCR test to Mr T and then turned around to talk to Mr P through the passenger side window of the ambulance. Ms Stocker denies entering the ambulance with Mr E as alleged by the Department.
Ms Stocker further submits that she applied the patient identification labels to the pathology request form and the test swap prior to entering the carpark on the basis that Mr T had advised her that the PCR test was for him. With respect to the Department's contention that there is no evidence to support Ms Stocker's position that she was unaware of any fraudulent activity, Ms Stocker submits that she had no further evidence to contribute because she was "oblivious" to the intentions of Mr T and Mr E.
In its reply submissions, the Department submits that Ms Stocker conceded that despite being aware of the process, it was through "her own poor judgement and trust in a fellow Queensland Health Employee" that Mr E took the PCR test intended for Mr T. The Department submits that the decision maker formed a view, that despite Ms Stocker's position with respect to allegation two, this does not "excuse" Ms Stocker's conduct nor does it excuse her "failure to adhere to organisational guidelines, protocols, procedures and standards for collecting pathology samples that were not congruent with the legislation".
Further, the Department submits that the decision maker had regard to Ms Stocker's denial of entering the ambulance however preferred the witness statement which provided that she did. Further, the Department notes in its submissions that while Ms Stocker confirmed that Mr E was present on 12 April 2022, she has not provided an alternate version of events to explain Mr E 's participation in the incident. In these circumstances, the Department submits that it was open to the decision maker to form the belief that it was more likely than not that Ms Stocker applied patient identification labels intended for Mr T on a PCR test that was performed on Mr E.
Relevantly, Ms Stocker does not concede that Mr E took the PCR Test instead of Mr T as submitted by the Respondent. The extent of Mr Stocker's concession is that she did hand the swab PCR test to Mr T instead of administering it herself and did not observe him conduct the swap.
Ms Stocker has frankly made this concession and apologised for her failure to conduct the test. However, relevantly, it is not alleged that Ms Stocker failed to administer the test to Mr T. What is alleged is that Ms Stocker fraudulently applied patient identification labels that did not match the patient who took the test. This allegation requires consideration of Ms Stocker's knowledge and intent. Ms Stocker's submission is that it was her understanding that Mr T undertook the test and accordingly, the label matched the patient who had undertaken the PCR test.
There is no direct evidence, other than Ms Stocker's denial, that addresses her knowledge and intent to engage in the alleged fraudulent conduct.
This allegation again relies on the heavily redacted anonymous File Note. The deficiencies with respect to that File Note in relation to allegation one are equally as relevant for my consideration of allegation two. Tellingly there is no direct evidence that Mr E undertook the swab PCR test instead of Mr T.
Relevantly, in relying on the redacted File Note to support the substantiation of allegation two, the decision maker relied on indirect evidence and inferences. I do not consider that the evidence before the decision maker was of the requisite standard to support the substantiation of allegation two. Consequently, I consider the substantiation of allegation two to be unfair and unreasonable.
Conclusion
Each of the allegations in this matter include elements of fraud. Consequently, given the seriousness of such allegations, there was a requirement that cogent and direct evidence be relied on to substantiate the allegations.
Unfortunately, the substantiation of the allegations was based on evidence that fell significantly below the requisite standard. Relevantly, there was no direct evidence that Ms Stocker engaged in the alleged conduct. It is clear that the decision maker relied on inferences drawn from the File Note. I do not consider that there was a proper factual foundation to support the findings by the decision maker that Ms Stocker engaged in the alleged conduct.
Further, I consider that there were procedural deficiencies that arose out of the wholesale acceptance by the decision maker of the heavily redacted File Note and the failure to interview other relevant witnesses including the three QAS Officers. These procedural deficiencies resulted in Ms Stocker being denied procedural fairness.
Consequently, I allow Ms Stocker's appeal.
Further, given the evidence in this matter, I set aside the decision subject of the appeal, and substitute, in lieu thereof, a decision finding that allegation one and allegation two are not substantiated.
Order
Accordingly, I make the following order:
1.Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and, in lieu thereof, is substituted with a decision that allegation one and allegation two are not substantiated.
2.Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 15 December 2022 be revoked.

[2023] QIRC 271

19 September 2023