Zink v Townsville Hospital and Health Service
[2019] QIRC 181
•22 November 2019
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION:
Zink v Townsville Hospital and Health Service [2019] QIRC 181
PARTIES:
Zink, Shannan
(Applicant)v
Townsville Hospital and Health Service
(Respondent)CASE NO:
D/2019/21 PROCEEDING:
Arbitration of Industrial Dispute DELIVERED ON:
22 November 2019 HEARING DATES:
9 May 2019
1 and 2 August 2019
16 September 2019 - Applicant's Submissions
4 October 2019 - Respondent's Submissions
14 October 2019 - Applicant's Reply SubmissionsMEMBER:
HEARD AT:
Thompson IC
Brisbane
ORDER:
1. That the Show Cause Notice issued by Galluccio to Zink on 14 January 2019 be withdrawn, forthwith.
2. The THHS Chief Executive (Keyes) pursuant to s 34 of the HHB Act exercise the power to appoint an appropriately qualified person to replace Galluccio as the delegate in the disciplinary process involving Zink.
The delegate ought not be a person subordinate to Keyes or a person who had been involved previously in the disciplinary process relating to Zink. It is likely the replacement delegate will be a person external to the THHS.
3. Once appointed, the delegate should be provided with all relevant documentation including:
· complaints;
· complainants' witness statements;
· any other witness statements;
· Investigation Report; and
· any other material relevant to the disciplinary process.
Note: Any material relating to aspects of Zink's cooperation or otherwise with the investigation is to be withheld from the replacement delegate.
4. Within thirty (30) days of the delegation taking effect, the delegate is required to determine, based upon the material provided to them whether grounds for discipline pursuant to s 187 of the PS Act exist and, if so, should Zink's employment continue to be suspended pursuant to s 189(1) of the PS Act.
5. If the delegate determines that grounds for discipline pursuant to s 187 of the PS Act exist in respect of Zink, a new Show Cause Notice should be issued and at the same time Zink be provided with the complainants' witness statements and any other witness statements to be relied upon by the delegate, unredacted, except in circumstances where there is content that relates to a person's medical circumstances.
6. In the interim, Zink is to remain suspended from employment on the remuneration to which she is entitled for the duration of the suspension.
However, if after thirty (30) days from the appointment of the replacement delegate, no decision has been made regarding whether the disciplinary process is to proceed or otherwise, Zink would be able to make application to the Commission regarding relief in respect of her suspension.
CATCHWORDS: INDUSTRIAL LAW - ARBITRATION OF INDUSTRIAL DISPUTE - WHERE APPLICANT SEEKING ORDERS - where applicant suspended from duty - where applicant given notice of show cause - whether applicant liable to be disciplined in relation to certain allegations - where applicant submitted a formal grievance regarding the show cause decision and related matters - where investigation report commissioned - where applicant seeking orders setting aside the respondent's decisions to suspend the applicant from duty.
LEGISLATION:
CASES:
Industrial Relations Act 2016, s 9, s 261, s 262, s 448, Schedule 5
Hospital and Health Boards Act 2001 (Qld), s 20
Public Service Act 2008, s 23, s 137, s 138, s 187, s 189, s 190, s 192Hospital and Health Boards Regulation 2012, Schedule 1AA
Public Service Regulation 2018, Clause 4, Schedule 3Kioa v West (1985) 159 CLR 550
Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
South Australia v O'Shea (1987) 163 CLR 378
Vega Vega v Hoyle & Ors [2015] QSC 111
Coutts v Close [2014] FCA 19
QSU v Sunshine Coast Regional Council (2009) 192 QGIG 79
Queensland Nurses Union of Employees v Sundale Garden Village, Nambour (No 3) (2006) 182 QGIG 16
AMEPKU v QR (2000) 165 QGIG 526
Case v State of Queensland (Department of Attorney-General, Queensland Corrective Services) [2017] QIRC 48Dorante-Day v Marsden [2019] QSC 125
George v Rockett (1990) 170 CLR 104
Mason v MWREDC Limited [2011] FCA 1512
Berenyi v Maynard [2015] QSC 370
Minister for Immigration and Citizenship v SZMDS (2010) HCA 16; 240 CLR 611; 84 ALJR 369APPEARANCES: Mr M. Black, Counsel instructed by Mr P. Turner, Maurice Blackburn for the Applicant.
Ms A. Coulthard, Counsel instructed by Ms N. McMahon, McCullough Robertson for the Respondent.
Reasons for Decision
[1]A Notice of Industrial Dispute was filed in the Queensland Industrial Relations Commission (the Commission) by Ms Zink (the applicant/Zink) on 27 February 2019 pursuant to s 261 of the Industrial Relations Act 2016 (the IR Act) notifying of a dispute with the Townsville Hospital and Health Service (the respondent/THHS).
Agreed Documents
[2]By virtue of an agreement between the parties two bundles of documents (Volumes 1 and 2)[1] were tendered in the proceedings.
[1] Exhibit 1.
Applicant's outline of submissions
[3]The applicant provided written submissions (dated 26 July 2019) prior to the commencement of the evidentiary phase of the hearing.
Introduction
[4]The applicant is employed as Legal Counsel for the respondent. However, since 17 May 2018 she has been suspended from duty. On 14 January 2019 the respondent's delegate issued a notice to the applicant giving her fourteen days to show cause why he should not be satisfied that she was liable to be disciplined in relation to certain allegations.
[5]On 7 February 2019 the applicant submitted a formal grievance to the respondent regarding the show cause decision and related matters. The applicant was dissatisfied with the respondent's response to the grievance and filed the present dispute on 27 February 2019. To resolve the dispute the applicant seeks the following orders:
(a) An order setting aside the respondent's decisions to suspend the applicant from duty on 17 May 2018 and on 14 January 2019 or a declaration that those decisions were invalid or unreasonable.
(b) An order that the Investigation Report commissioned by the respondent and dated 9 January 2019 be excluded from consideration in any disciplinary process undertaken by the respondent.
(c) An order setting aside the show cause notice issued on 14 January 2019, and requiring:
(i)Before any further consideration of disciplinary action is taken, the Respondent is to disclose to the Applicant full copies (without redactions) of any records of interview or witness statements obtained during the investigation of the relevant allegations.
(ii)Any further consideration of disciplinary action be undertaken by a delegate other than Mr Salvatore (Sam) Galluccio.
Jurisdiction
[6]The subject matter of the applicant's formal grievance dated 7 February 2019 is an "industrial matter" for the purposes of s 9 and Sch 5 of the IR Act. The Commission has jurisdiction to settle the dispute by arbitration,[2] including the power to "make another order or exercise another power the commission considers appropriate for the prevention of, or the prompt settlement of, the dispute".[3]
[2] s 262(3)(b).
[3] s 262(4)(d).
[7]Under s 448(1)(b) of the IR Act, the Commission may "hear and decide":
(b) all questions -
(i)arising out of an industrial matter; or
(ii)involving deciding the rights and duties of a person in relation to an industrial matter; or
(iii)it considers expedient to hear and decide about an industrial matter.
[8]Generally, the Commission "has the power to do all things necessary or convenient to be done for the performance of its functions" (s 451(1)), including the power to make such decision or order it considers appropriate (s 451(2)).
Basic Facts
[9]The applicant commenced as District Solicitor with the respondent in February 2007. She remained in that position until a restructure of Queensland Health in 2012, at which time the respondent (the Townsville Hospital and Health Service) was formed and her role became known as Legal Counsel with the respondent.
[10]The applicant is employed within the Health Service Legal Unit in Douglas, Townsville. She reports directly to the respondent's Chief Executive who, since November 2017, has been Mr Kieran Keyes. Her primary responsibility is to provide legal advice to the Chief Executive, the Executive and the respondent's staff generally. The Legal Unit has two administrative positions and three legal officer positions, the occupants of which report directly to the applicant as Legal Counsel.
[11]On 17 May 2018 the applicant was handed a letter of the same date in a meeting with Mr Keyes and Mr Galluccio (the respondent's Executive Director of Human Resources and Engagement). The letter included statements to the effect that:
(a) the respondent had "received a number of complaints against" the applicant;
(b) preliminary investigations into the complaints had "raised significant matters that go to the issue of the proper and efficient management" of the respondent; and
(c) the applicant's employment was suspended with effect from 17 May 2018 until the respondent "has determined what further action is appropriate, including any management or disciplinary action".
[12]The applicant disputed the suspension decision by way of a letter to Mr Keyes dated 22 May 2018. However, on 25 May 2018, Mr Keyes rejected the applicant's complaints and confirmed the suspension.
[13]By letter dated 27 June 2018 (received by the applicant on 29 June 2018), Mr Galluccio advised the applicant that the respondent had commissioned an investigation "into allegations about your conduct in the workplace" and that the Investigator, Ms Corlia Roos, had spoken with "relevant witnesses" and reviewed documentation. The letter included statements to the effect that:
(a)if "the allegations against you have been substantiated, THHS may consider commencing a disciplinary process against you".
(b)the applicant was requested to attend an interview with Ms Roos on 10 July 2018, and the applicant should "allow at least four hours for the interview".
[14]Enclosed with Mr Galluccio's letter was a document titled "Confidential - Allegations concerning Shannan Zink".
[15]On 3 July 2018, the applicant emailed Mr Galluccio to say that she would not have sufficient time to prepare for an interview on 10 July 2018. Mr Galluccio responded on 10 July 2018, advising that the interview would take place on 23 July 2018.
[16]On 23 July 2018, the applicant attended for the interview with Ms Roos. The applicant submitted to Ms Roos a letter dated 23 July 2018, in which it was contended that it was inappropriate for the applicant to be required to respond to the allegations until after she was given certain information (including all documentation and witness statements obtained in relation to the investigation).
[17]Amongst other things, it became apparent to the applicant during the interview that Ms Roos had possession of a number of witness statements. However, Ms Roos did not give copies of those statements to the applicant.
[18]On 6 August 2018, Mr Galluccio wrote to the applicant and, amongst other things, asserted that the applicant had been "unwilling" to respond to each of the allegations. The letter included statements to the effect that:
(a) Mr Galluccio was "of the view that you have been given sufficient information to answer questions put to you by Ms Roos ... and to respond to the Allegations".
(b) Mr Galluccio was, however, "prepared to provide you with relevant extracts of five witness statements that have been prepared to date ... and five documents referred to therein".
[19]The witness statements enclosed with the letter were from employees of the Respondent: Ms Hall, Ms Haley, Ms Gianoulis, Ms Grant, and Ms Minchio. Significant parts of those statements had been redacted or "blacked out".
[20]Mr Galluccio's letter of 6 August 2018 gave the applicant "an opportunity to attend a further interview with Ms Roos" on 24 August 2018 or, alternatively, to provide a written response or submissions by 20 August 2018.
[21]On 21 August 2018, the applicant provided a medical certificate to the respondent.
[22]On 31 August 2018, the applicant retained solicitors and (through them) sought from Mr Galluccio further time to respond to the allegations. The applicant's solicitors also requested further information (including unredacted copies of the witness statements).
[23]On 10 September 2018, Mr Galluccio wrote to the applicant's solicitors. That letter again asserted that the applicant had been provided with "sufficient information" to enable her to respond to the allegations and refused to provide unredacted copies of the witness statements. The letter advised that the recording of the applicant's interview with Ms Roos would be provided and that a "two week extension" was granted (i.e. until 24 September 2018).
[24]On 24 September 2018, the applicant (through her solicitors) requested an extension until 13 October 2018 due to health issues. On 25 September 2018, Mr Galluccio granted an extension until 12 October 2018.
[25]On 12 October 2018, the applicant (through her solicitors) wrote to Mr Galluccio and provided a statement in response to the allegations, along with supporting material. The cover letter repeated the applicant's request for disclosure of the unredacted witness statements and other relevant material.
[26]On 19 October 2018, the Respondent (through its solicitors) wrote to the applicant's solicitors acknowledging receipt of the applicant's response to the allegations. In that letter, it was asserted that the witness "statements were redacted to remove superfluous information and to protect the health and safety of the interviewees". No further material was disclosed.
[27]On 2 November 2018, the Respondent (through its solicitors) again wrote to the applicant's solicitors. That letter included advice that:
(a) the respondent was willing to provide the applicant with remote access to her work email account and electronic files "to facilitate any final responses" she might be able to provide in relation to some of the allegations.
(b) any further response was to be provided by 16 November 2018.
[28]On 16 November 2018, the applicant (through her solicitors) wrote to the respondent's solicitors. That letter reiterated the complaint about the applicant not having been provided with unredacted copies of the witness statements. The letter also enclosed a supplementary statement from the applicant following the access that had been granted to her work emails.
[29]On 7 December 2018, the respondent (through its solicitors) acknowledged receipt of the applicant's supplementary statement and invited the applicant to attend a further interview with Ms Roos.
[30]On 12 December 2018, the applicant (through her solicitors) requested a copy of any document containing the questions Ms Roos intended to ask at the interview. The respondent's solicitors advised that there was no specific list of questions.
[31]On 13 December 2018, the applicant attended a further interview with Ms Roos (accompanied by her solicitor). During that interview, it became apparent that since the first interview Ms Roos had interviewed two more witnesses (Mr Keyes and Ms Kelly). Ms Roos did not provide copies of any statements or records of interview of those witnesses, but said: "they're just witnesses in the matter, not complainants".
[32]Later on 13 December 2018, the applicant (through her solicitors) wrote to the Respondent asking for details of all witnesses and copies of all witness statements or interviews (including those of Mr Keyes and Ms Kelly).
[33]On 18 December 2018, the respondent (through its solicitors) confirmed to the applicant that Ms Roos had interviewed Mr Keyes and Ms Kelly in addition to the five witnesses whose redacted statements had already been provided. The letter declined to provide statements from Mr Keyes and Ms Kelly, asserting that those witnesses "did not raise any new allegations".
[34]On 3 January 2019, the applicant (through her solicitors) renewed her request for disclosure of the records of interview of Mr Keyes and Ms Kelly. The letter also asked the respondent to advise whether the other witnesses had participated in any supplementary interviews.
[35]On 14 January 2019, Mr Galluccio issued a show cause notice to the Applicant. Amongst other things, that letter:
(a) advised that Ms Roos' investigation had concluded and a report had been prepared "based on careful consideration of all evidence concerning the allegations made about your conduct, including your oral and detailed written submissions and the interviews conducted with the complainants and witnesses".
(b) provided access (by way of an online 'link') to Ms Roos' report dated 9 January 2019 (the Investigation Report) and stated that "Full particulars of the allegations are those which are indicated as 'substantiated' in the report". The letter also set out a "summary" of the allegations.
(c) stated that there was only a limited waiver of legal privilege over the content of the Investigation Report and that "privilege has not been waived over the terms of reference of the investigation".
(d) under the heading "Proposed Disciplinary Grounds", advised that Mr Galluccio would be the decision maker for the matter.
(e) stated that the applicant had "a period of fourteen (14) calendar days from the date of this letter to show cause why I should not be reasonably satisfied that you are liable to be disciplined in relation to the above allegations".
[36]The Investigation Report was over 100 pages plus lengthy attachments. The Investigation Report stated that it was attaching the Terms of Reference, but it did not in fact do so.
[37]Amongst other things, the Investigation Report:
(a)Noted that Ms Roos had been "engaged for the purpose of independently conducting a fact finding investigation and reporting on the circumstances which relate to the allegations" and specifically referred to written complaints from Ms Hall, Ms Minchio and Ms Grant.
(b)Expressed significant adverse views about the applicant's credibility.
(c)Stated that Ms Roos had made findings on the balance of probabilities and had found thirteen allegations substantiated; nine allegations substantiated in part; and insufficient evidence to substantiate three allegations.
(d)Identified that Ms Roos had initially been provided with three draft statements (from Ms Hall, Ms Minchio, and Ms Haley) but had ultimately interviewed eight employees (including the applicant). The Report identified six complainants: Ms Haley, Ms Hall, Ms Grant, Ms Minchio, Ms Gianoulis, and Ms Kelly.
[38]On 22 January 2019, the applicant (through her solicitors) wrote to the Respondent. In that letter, she sought an extension until 28 February 2019 to respond to the show cause notice. The letter enclosed a medical certificate.
[39]On 24 January 2019, the respondent (through its solicitors) stated that it was willing to allow an extension until 11 February 2019 for any response from the applicant.
[40]On 7 February 2019, the applicant submitted a grievance to Mr Galluccio regarding his show cause notice and related issues. On 8 February 2019, the Respondent (through its solicitors) agreed to maintain the status quo pending resolution of the grievance.
[41]On 26 February 2019, the respondent (through its solicitors) gave the applicant:
(a) A letter from Mr Galluccio requiring a response to his show cause letter by 1 March 2019.
(b) A letter from Mr Stephen Eaton (the respondent's Chief Operating Officer) stating he had "conducted a thorough investigation into your grievance" and determined that the grievance was not substantiated.
[42]On 27 February 2019, the applicant filed the present Notice of Industrial Dispute. By way of correspondence between the parties, the respondent agreed to suspend the disciplinary process "until further notice".
The suspension decisions
[43]The first suspension decision was made on 17 May 2018 by Mr Keyes. That decision was made under s 137 of the Public Service Act 2008 (the PS Act), purportedly on the basis that Mr Keyes held a "reasonable belief that the proper and efficient management of the Legal Unit of THHS may be prejudiced if you remain in your current position". The applicant submitted:
(a) Mr Keyes acted unreasonably by failing to give the applicant procedural fairness or any advance notice of the suspension.
(b) Mr Keyes acted unreasonably by failing to give the applicant any advance notice of the purpose of the meeting of 17 May 2018, and failing to give the applicant any opportunity to have a support person present at that meeting.
(c) At the time of making the first suspension decision, there were no sufficient grounds for Mr Keyes to reasonably believe that "the proper and efficient management of the department might be prejudiced if the officer is not suspended" as required by s 137(1) of the PS Act. The Commission should find that there were no such grounds.
(d) At the time of making the decision, Mr Keyes did not fully or properly "consider all alternative duties that may be available for the officer to perform" as required by s 137(3) and did not "indicate alternative duties which were considered and why they were deemed unworkable" as required by Clause 3 of the HR Policy E14. The Commission should find that there were reasonable alternative duties that the Applicant could have performed (including legal or administration work from home or from an alternative workplace, or duties in the Patient Safety Office).
(e) In making the decision, Mr Keyes imposed a suspension of indefinite or indeterminate length contrary to s 137(2)(a) and Clause 3 of the HR Policy E14.
[44]The second suspension decision was made on 14 January 2019 by Mr Galluccio. That decision was made under s 189 of the PS Act, purportedly on the basis that he reasonably believed the applicant was liable to discipline under a disciplinary law. The applicant will submit that:
(a) At the time of making the decision, there were no sufficient grounds for Mr Galluccio to reasonably believe that "the employee is liable to discipline under a disciplinary law" as required by s 189(1) of the PS Act. The Commission should find that there were no such grounds.
(b) At the time of making the decision, Mr Galluccio did not fully or properly "consider all alternative duties that may be available for the employee to perform" as required by s 189(2) and did not "indicate alternative duties which were considered and why they were deemed unworkable" as required by clause 3 of the HR Policy E14. The Commission should find that there were reasonable alternative duties that the applicant could have performed (including legal or administrative work from home or from an alternative workplace, or duties in the Patient Safety Office).
(c) In making the decision, Mr Galluccio imposed a suspension of indefinite or indeterminate length contrary to s 137(2)(a) and clause 3 of the HR Policy E14.
[45]The applicant submits that the Commission should find both suspension decisions were made contrary to law and policy; were unreasonable or without reasonable grounds; and should be set aside.
The Investigation Report
[46]The applicant submitted that it would be unfair and unreasonable for any disciplinary decision maker to rely on the Investigation Report prepared by Ms Roos, and so the Report should be excluded from consideration in any future disciplinary process.
[47]Relevantly, the Investigation Report included the following features:
(a) The Report included the Investigator's comments and concerns about the applicant's level of cooperation without recognising or giving due regard to the applicant's right to dispute issues involving procedural fairness.
(b) The Report expressed the Investigator's opinions, in a forceful way, in relation to matters such as the credibility of witnesses and the likelihood of events.
(c) The Report went beyond merely compiling the facts and evidence, and extended to including the Investigator's conclusions about whether various actions were appropriate or reasonable, thereby not merely making findings of fact but purporting to determine the proper characterisation of those facts.
(d) The Report expressed the Investigator's opinions as to the ultimate conclusions to be reached by the decision-maker; namely whether certain allegations were or were not substantiated.
(e) Many of the Investigator's findings, opinions, conclusions and characterisations of fact were adverse to the applicant.
[48]The Investigation Report and its contents came about in circumstances where (prior to the issue of the Investigation Report):
(a) The applicant was not provided with a copy of the Investigator's letter of engagement or terms of reference.
(b) The applicant was not provided with copies of the original or subsequent complaints.
(c) The applicant was not given adequate particulars of the complaints prior to being required to attend an interview with the Investigator.
(d) The applicant was not provided with copies of all evidence available to the Investigator, including:
(i)The statements from Ms Hall, Ms Grant, Ms Minchio, Ms Haley and Ms Gianoulis (the applicant having only been given redacted copies).
(ii)Statements or records of interview in respect of Mr Keyes and Ms Kelly.
(iii)Any further statements or records of interview in respect of witnesses interviewed after submission of the applicant's written response (including Ms Grant, Ms Michio, Ms Haley and Ms Gianoulis).
(e) The applicant was not provided with a transcript of her interview of 13 December 2018.
(f) The applicant was only given limited access to relevant records from the workplace.
(g) The applicant was expressly told by the Investigator that Ms Kelly was not a complainant, even though the Investigation Report subsequently classified Ms Kelly as a complainant.
[49]It is further submitted that a reasonable, objective observer would perceive the Investigator to have demonstrated a pre-judgment of the applicant's cooperativeness or credibility; including because:
(a) After the first interview between Ms Roos and the applicant, Ms Roos told Mr Galluccio that the applicant had been "unwilling" to answer any of her questions when that was not a fair characterisation of events.
(b) During the second interview between Ms Roos and the applicant, Ms Roos described Ms Kelly as only being a witness, not a complainant, but then without further notice to the applicant classified Ms Kelly as a complainant in the Investigation Report.
(c) During that second interview, Ms Roos through her words and tone of voice, conveyed that she was unhappy with the applicant and that (in Ms Roos's opinion) at least part of the applicant's statement was not "an accurate description".
[50]For those reasons, it is submitted that it would be unfair and unreasonable for any decision maker to rely on the Investigation Report for the purposes of any disciplinary process under the PS Act. The findings, conclusions and opinions expressed in the Report have the real potential to unfairly prejudice or influence a decision maker against the applicant.
The Show Cause decision
[51]On 14 January 2019, Mr Galluccio's show cause letter advised the applicant that he had delegated authority for the purposes of dealing with her matter. He set out a summary of eight allegations but said "Full particulars of the allegations are those which are indicated as 'substantiated' in the" Investigation Report. Mr Galluccio said that he had "independently reached the view that as a result of your conduct, if proven, you may be subject to disciplinary action". He went on to say, when dealing with suspension, that: "I reasonably believe that you are liable to discipline under a disciplinary law".
[52]Mr Galluccio's letter expressly stated that he intended to consider the Investigation Report when assessing the alleged conduct. He advised the applicant that she had 14 days to respond, failing which he would make a decision without her response.
[53]The applicant submits that Mr Galluccio's show cause decision is unfair and unreasonable, because:
(a) In making the decision, Mr Galluccio relied on the Investigation Report (which, for the reasons set out above, should not have been relied upon).
(b) Mr Galluccio made no effort to exclude from the process prejudicial information that was not part of the allegations being advanced, including in relation to the various allegations that were not substantiated in the Investigation Report.
(c) The show cause decision required the applicant to respond to ambiguously framed allegations, because it referred to the allegations as being "those which are indicated as 'substantiated' in the" Investigation Report without identifying whether the allegations described as substantiated in part were to be included in that reference.
(d) The show cause decision required the applicant to respond to allegations made against her without disclosure of the material referred to in the Investigation Report.
(e) Before issuing the show cause notice, Mr Galluccio failed to fully or properly "consider whether management action could more appropriately address the concern" as required by clause 2 of HR Policy E10.
[54]Further, the applicant submitted that an objective observer would reasonably apprehend that Mr Galluccio might not bring an impartial mind to the resolution of any disciplinary matters regarding the applicant, because:
(a) Mr Galluccio had a close and continuing involvement in the process and investigation, right from the start when the first suspension decision was made on 17 May 2018 (and including being the 'point of contact' during the suspension).
(b) During the investigation process, Mr Galluccio formed a view adverse to the applicant because he believed she had attended an interview with Ms Roos "unwilling to respond to each of the Allegations".
(c) During the investigation process, Mr Galluccio formed a view adverse to the applicant because he considered that "she failed to engage in the process and refused to answer Ms Roos' questions".
(d) During the investigation process, Mr Galluccio expressed disappointment with the applicant's conduct in part because of his view that it inconvenienced Ms Roos who "had travelled to Townsville from Brisbane specifically to interview you".
(e) Mr Galluccio had access to evidence and statements which have not been disclosed to the applicant.
(f) Mr Galluccio repeatedly refused to grant the applicant access to the full witness statements that are available.
(g) When Mr Galluccio granted an extension of time on 25 September 2018, he peremptorily determined that there would "be no further extensions" thereby prejudging that question and precluding any fair assessment of future circumstances.
(h) Mr Galluccio has already formed a belief that the applicant is liable to disciplinary action.
[55]Finally, the applicant submitted that Mr Galluccio is not an appropriate delegate to take on the role of decision maker in the disciplinary process having regard to matters set out in the preceding paragraph and because Mr Galluccio is a subordinate employee to one of the witnesses in the disciplinary process (i.e. Mr Keyes).
[56]The applicant seeks orders as set out in paragraph [5] above. (References to specific documents omitted)
Respondent's outline of submissions
[57]The respondent also provided written submissions (dated 26 July 2019) prior to the commencement of the evidentiary phase of the hearing.
Overview
The Dispute
[58]Pursuant to s 261 of the IR Act the Notifier, Shannan Zink gave notice to this Commission of an industrial dispute concerning her employment with the respondent, THHS.
[59]The dispute arises out of a formal grievance made by Ms Zink under clause 7.2(b) of the Hospital and Health Services General Employees Queensland Health Award State 2015 (the Award). That grievance and this dispute concerns the following actions taken by THHS:
(a) a decision by the chief executive of THHS pursuant to s 137(1) of the PS Act to suspend Ms Zink's employment (as Legal Counsel) with THHS;
(b) an investigation conducted on behalf of THHS into complaints made against Ms Zink by her co-workers in the legal unit at THHS and the report of that Investigator into those complaints;
(c) a decision by the chief executive's delegate to issue a show cause notice to Ms Zink in respect of those complaints which the Investigator had found there was sufficient evidence to substantiate in whole or in part;
(d) a decision by the chief executive's delegate pursuant to s 189 of the PS Act to suspend Ms Zink's employment with THHS.
[60]In broad summary, Ms Zink complains (as set out in her grievance) that each of the above actions were taken contrary to the PS Act, certain workplace policies and/or involved a denial of natural justice or procedural fairness.
The statutory framework for the employment of health service employees
[61]THHS is a prescribed Hospital and Health Service.[4] Pursuant to s 20 of the Hospital and Health Boards Act 2001 (Qld) (the HHB Act), THHS may employ health service employees. It is pursuant to that power that THHS employs Ms Zink as a health service employee in the position of Legal Counsel.
[4] Section 20(4) of the Hospital and Health Boards Act 2001 (Qld) and Schedule 1AA of the Hospital and Health Boards Regulation 2012.
[62]Section 69 of the HHB Act provides that a health service employee is employed under that Act and not under the PS Act. However, s 66 of the HHB Act provides that the conditions of employment for a health service employee includes 'the applied Public Service law'. As a consequence of s 23 of the PS Act and Clause 4 of Schedule 3 to the Public Service Regulation 2018, the following sections of the PS Act apply to Ms Zink's employment and arise for consideration in this dispute: s 137 (contained in Chapter 5 which deals with staffing generally) and ss 187, 188, 189 and 190 (contained in Chapter 6 which deals with disciplinary action).
[63]The Code of Conduct of the Queensland Public Service 2011 (Code of Conduct), and some Department of Health workplace policies also apply to Ms Zink's employment.
The s 137 suspension decision
[64]Section 137 is contained in Part 4 of Chapter 5 of the PS Act. Chapter 5 is headed 'Staffing Generally'. Part 4 is headed 'Termination, Suspension and Related Matters'.
[65]Mr Kieran Keyes (Mr Keyes), in his capacity as chief executive of THHS, made a decision, pursuant to s 137(1) of the PS Act, to suspend Ms Zink from duty (the s 137 suspension decision). The suspension was on normal remuneration.
[66]Mr Keyes communicated his s 137 suspension decision to Ms Zink orally at a meeting he had with her on 17 May 2018 and by letter dated 17 May 2018 (the suspension letter).
[67]Ms Zink's employment is no longer suspended under s 137. That suspension came to an end when the decision was made on 14 January 2019 (by Mr Keyes' delegate) to suspend her employment under s 189 of the PS Act.
The s 137 suspension decision was not contrary to law or policy
[68]Ms Zink complains that the s 137 suspension decision is flawed as it was contrary to law or policy because:
(a) Mr Keyes did not have a reasonable basis for his belief that the proper and efficient management of the department might be prejudiced if her employment was not suspended;
(b) the suspension letter did not provide a date when the suspension would end contrary to s 137(2) of the PS Act and Clause 3 of the Department of Health's HR Policy E14 - Suspension of Employees (Policy E14);
(c) Mr Keyes did not consider all alternative duties that may be available for Ms Zink to perform as required by s 137(3) of the PS Act nor consider the matters at Clause 2 of Policy E14;
(d) Mr Keyes did not monitor the suspension or otherwise consider the factors at Clause 8 of Policy E14.
[69]Policy E14, as it applied in May 2018, did not apply to a prescribed hospital and health service.[5] Accordingly, Mr Keyes was not obliged to follow any of the requirements in Policy E14 in making his decision under s 137.
[5] The version of Policy E14 annexed to Ms Zink's first statement that appears as annexure SZ2 to Ms Zink's statement of 7 June 2018 only took effect in October 2018. Prior to that, Policy E14 did not apply to a prescribed hospital and health service.
[70]As to the basis for his belief, Mr Keyes states in the suspension letter that preliminary investigations have raised 'significant matters that go to the issue of the proper and efficient management of THHS'. In his statement of evidence, Mr Keyes explains the basis for his belief that the proper and efficient management of the legal unit might be prejudiced if Ms Zink's employment were not suspended. His evidence demonstrates that he had the requisite reasonable belief and his basis for that belief. It is submitted, that on the evidence, there is no basis upon which the Commission could conclude that Mr Keyes did not hold the requisite statutory belief in coming to his decision.
[71]It is accepted that the suspension letter did not provide a specific date upon which the suspension would end. Subsection 137(2)(a) requires that the notice must state when the suspension 'starts and ends'. It does not, however, require that this be expressed as a specific date. The suspension letter states that the suspension 'unless otherwise advised, will end once THHS has determined what further action is appropriate, including any management or disciplinary action'. This is to be read in the context of what Mr Keyes said to Ms Zink at the meeting on 17 May 2018 that there would be an investigation into the complaints that had been made and in a letter dated 25 May 2018 from Mr Keyes to Ms Zink in which he stated that ' … the length of your suspension will be determined by the duration of the investigation and its outcome'. It is submitted that this is sufficient to satisfy the requirement in s 137(2)(a).
[72]The suspension letter states that Mr Keyes considered all alternative duties that might have been available for Ms Zink to perform. Specifically, Mr Keyes states that 'all alternative duties that may be available to you to perform were considered but none were identified that are commensurate to your salary and skill level and within a reasonable driving distance of your place of residence'. Further, in his statement, Mr Keyes explains how he came to make that determination. It is submitted that Mr Keyes has discharged the obligation in s 137(3) to consider all alternative duties that may have been available for Ms Zink to perform before making his suspension decision.
The s 137 suspension decision did not require procedural fairness
[73]Ms Zink complains that the s 137 decision is flawed because she was not afforded natural justice or procedural fairness in the manner in which the decision was reached because she was:
(a) not afforded an opportunity to respond to any proposal to suspend her employment prior to the employment being suspended;
(b) was not provided with the basis in evidence or any allegations said to provide the basis for the chief executive's belief that the proper and efficient management of the department might be prejudiced if her employment were not suspended;
(c) not advised of any date when the suspension would end or be reviewed;
(d) not aware of, nor given any opportunity to participate in or respond to, the matters raised in the preliminary investigation referred to in the suspension notice;
(e) not advised that she could have a support person present at the meeting in which the suspension was communicated to her.
[74]The suspension letter informed Ms Zink that THHS had received a number of complaints alleging breaches of Human Resources policies including, but not limited to, the Workplace Harassment Human Resources Policy (E13). In the meeting on 17 May 2018, Mr Keyes explained that there were complaints from more than one complainant and that the complaints were serious. One of the complainants was identified by name. To that extent, Ms Zink was made aware of the nature of the allegations that had been made against her.
[75]THHS otherwise accepts that the steps set out in [72](a), (b), (d) and (e) above were not taken when suspending Ms Zink's employment pursuant to s 137. (As to specifying the end date of the suspension, this is dealt with above).
[76]However, THHS submits that there is no requirement to afford natural justice in suspending employment under s 137.
[77]As noted above, s 137 is contained in Chapter 5 of the PS Act which is concerned with 'staffing generally'. The heading to s 137 is 'suspension other than as disciplinary action'.
[78]The Explanatory Memorandum to the Public Service Bill 2008 explains that s 137 provides flexibility for a chief executive to suspend from duty for non-discipline reasons and that the clause does not require adherence to natural justice as the employee retains the benefit of normal remuneration and continuity of employment.[6]
[6] Public Service Bill 2008, Explanatory Notes, p 31.
[79]This is to be contrasted with the power to suspend under Chapter 6 of the PS Act which concerns disciplinary action. Section 189, which is contained in Chapter 6, is headed 'Disciplinary action for public service employees and former public service employees'. Under s 189, the Chief Executive may suspend an employee if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law. Section 190, which deals with procedure for disciplinary action, expressly provides that natural justice is not required where a suspension is on normal remuneration: s 190(2).
[80]Reading together the two powers of suspension in the PS Act, and having regard to the purpose of s 137 as referred to in the Explanatory Memorandum, it would be inconsistent with parliament's intention to conclude that a suspension under s 137 - which is on normal remuneration - requires natural justice whilst a disciplinary suspension under s 189 on normal remuneration does not.
[81]Were that submission not accepted, it does not follow that THHS would have been required to take each of the steps Ms Zink asserts should have been taken. What is required to discharge an obligation of procedural fairness depends upon the nature of the power being exercised, the way in which the exercise of that power affects a person's rights and interests, the context of the decision making power in question including the part it has in the overall decision making process. The enquiry is always whether overall it can be said that a practical injustice has occurred.[7] Relevant to that assessment, in the context of a s 137 decision, those matters would include:
(a) the purpose of which s 137 gives a chief executive power to suspend employment;
(b) the statutory context including that a s 137 suspension is not a suspension as part of a disciplinary process;
(c) that the PS Act expressly sets out what is required in the making of a s 137 decision and that those steps have been complied with; and
(d) in the context of the broader process overall there has been an opportunity to be heard and no practical injustice has occurred.[8]
[7] For a statement of that principle see e.g.: Kioa v West (1985) 159 CLR 550 per Mason J, pp 584-585.
[8] Wirth v Mackay Hospital land Health Service & Anor [2016] QSC 39 [113].
[82]Having regard to each of those matters, THHS submits if there were an obligation to afford procedural fairness (which is disputed) there has been no denial of procedural fairness.
The investigation and Investigator's report
[83]Soon after the s 137 suspension decision, an independent Investigator was appointed to conduct an investigation. That investigation was conducted and the Investigator concluded her investigation with a written report. The Investigator made findings (set out in the report), on the balance of probabilities, that there was sufficient evidence to substantiate a number of the allegations that had been made against Ms Zink by her co‑workers and which had been the subject of her investigation.
[84]In summary, by reference to the grievance, Ms Zink alleges that:
(a)the investigation was not conducted according to law and policy;
(b)during the investigation she was denied procedural fairness; and
(c)she was not afforded procedural fairness in the manner in which the decisions, findings or recommendations in the report were reached.
[85]Ms Zink claims that on these bases the investigation and the report are so flawed that THHS should not have relied upon them in making the show cause decision or the s 189 suspension decision which followed from the consideration of the report by the chief executive's delegate. THHS rejects these claims and submits that the investigation was conducted and the report was prepared according to law and policy and that Ms Zink has been afforded procedural fairness.
Overview of the appointment of an independent Investigator, the investigation and the Investigation Report
[86]At the meeting on 17 May 2018, Mr Keyes told Ms Zink that an investigation would be commenced immediately.
[87]Ms Corlia Roos of Q Workplace Solutions (QWS) was appointed to conduct the independent investigation on or about 24 May 2018. Ms Roos is an experienced Workplace Investigator.
[88]Ms Roos outlines the process of her investigation in her report and in her statement of evidence. In summary, that process involved:
(a) interviewing eight employees of THHS over the period from 29 May 2018 to 19 December 2018 (five (sic) of whom made complaints about Ms Zink's workplace conduct and are referred to by her as the complainants);
(b) preparing a written list of the 25 allegations the complainants had made against Ms Zink about her conduct in the workplace and providing (through THHS) that written list of allegations to Ms Zink on 27 June 2018 (the allegations);
(c) interviewing Ms Zink (with her support person) about some of the allegations in a face to face interview with her at THHS on 23 July 2018;
(d) preparing signed statements of the complainants' evidence. Ms Roos explains that she redacted parts of those statements which were about matters not within the scope of her investigation;
(e) receiving and reading two written submissions from Ms Zink dated 12 October 2018 and 16 November 2018 in response to the allegations and the complainants' statements (which had been provided, in their redacted form, to Ms Zink by THHS on 6 August 2018);
(f) interviewing two witnesses on 10 December 2018 and preparing written statements of their evidence;
(g) conducting a further interview with Ms Zink by telephone on 13 December 2018;
(h) receiving documents from THHS, the complainants and witnesses and asking Ms Zink questions about those documents where relevant.
[89]During the course of the investigation:
(a) on 6 August 2018, THHS provided Ms Zink with copies of the complainants' statements (as redacted by Ms Roos) and the five documents referred to in those statements;
(b) on 10 September 2018, THHS provided Ms Zink with a link to access the recording of her interview with Ms Roos on 23 July 2018;
(c) on 2 November 2018, THHS provided Ms Zink with access to her email account and electronic files for a period of one week.
[90]Also, during the course of the investigation, Ms Zink asked for a number of extensions of time within which to provide her responses. These extensions were granted.
[91]After concluding her investigation, Ms Roos prepared a written report, which she delivered on 9 January 2019.
[92]The written report (and attachments) was provided to Ms Zink on 14 January 2019 under cover of the show cause letter from the chief executive's delegate (Mr Galluccio) to Ms Zink.
The investigation was conducted in a way which was procedurally fair
[93]Whether a person has been afforded procedural fairness depends upon the facts and circumstances of each particular case, i.e.[9]:
(a) the nature of the interest affected and the way in which that interest is affected;
(b) the nature of the inquiry;
(c) the subject matter; and
(d) the rules under which the decision maker is acting.[9] Kioa v West (1985) 159 CLR 550, 584-585.
[94]In assessing these factors, the process in its entirety, particularly where a decision making process involves different steps or stages before a final decision is made, should be considered.[10]
[10] South Australia v O'Shea (1987) 163 CLR 378 per Mason CJ, 389.
[95]The investigation conducted by Ms Roos was a fact finding investigation. The investigation is not itself a step in the disciplinary process provided for in Chapter 6 of the PS Act.[11] It was a step in a broader process which may or may not have resulted in the commencement of a disciplinary process under Chapter 6 of the PS Act. This was explained to Ms Zink at the commencement and during the course of the investigation. Mr Galluccio also reiterated this in the show cause letter when he described the investigation as 'a fact finding investigation' and, goes on to say that 'no determination [by him] of your liability has been made, or will be made, in relation to the allegations until you have had had an opportunity to respond'.
[11] Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39, [19]-[33].
[96]In the context of a fact finding investigation, THHS submits that Ms Zink was given a sufficient and reasonable opportunity to respond to all of the allegations and to put anything she wished to the Investigator relevant to her interests. There was no unfairness or practical injustice caused by any of the matters of which Ms Zink complaints in her grievance.
[97]Procedural fairness did not require (as is alleged) that Ms Zink:
(a)be provided with a copy of the Investigator's terms of reference. It was sufficient that she was told what was being investigated and, that the investigation process was explained to her;
(b)be provided with copies of the original complaints or be told the names of the original complainants. The list of allegations provided to Ms Zink identified the complainants. During the course of the investigation, Ms Zink was provided with copies of the complainants' redacted statements;
(c)be provided with unredacted copies of the complainants' statements. Procedural fairness requires that a person have the opportunity to respond to credible, relevant and significant material that will be relied upon by the decision maker.[12] Whether procedural fairness requires a person to be given unredacted copies of witness statements depends on whether that is necessary to enable the person to address or rebut prejudicial information that will be relied upon by the decision maker.[13] Here, the redactions contained material not relevant to the investigation; and, as such, the redacted material was not relied upon by the Investigator whose investigation concerned the listed allegations. The redacted material will not be relied upon by Mr Galluccio;
(d)be provided with a copy of the transcript of her interview with the Investigator on 13 December 2018 before Ms Roos finalised her report;
(e)be provided with recordings and transcripts of further discussions Ms Roos had with complainants after Ms Zink submitted her second written response, in circumstances where Ms Zink had been given a reasonable opportunity to address issues relevant to her interests.
[12] Kioa v West (1985) 159 CLR 550, 629; VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 96-97.
[13] Vega Vega v Hoyle & Ors [2015] QSC 111; Coutts v Close [2014] FCA 19, [114].
[98]Further, there was no failure to afford procedural fairness by reason of the fact that Ms Zink was not provided with copies of the statements of the witnesses (Mr Keyes and Ms Kelly) prior to the report being concluded because any relevant matters arising from Ms Roos' discussions with those witnesses were put by her to Ms Zink in their telephone conversation on 13 December 2018.
[99]THHS did not, as alleged, demand that Ms Zink respond to allegations whilst being under a medical incapacity. As noted above, Ms Zink sought extensions of time to agreed dates on the basis of medical incapacity and extensions were granted to accommodate Ms Zink's requests.
[100]There is no evidence, having regard to Ms Roos' report, to support Ms Zink's allegation that she (Ms Roos) was biased or that a hypothetical fair minded observer would not apprehend a lack of impartiality on Ms Roos' part. Nor can a fair reading of the report support the allegations that Ms Zink makes about Ms Roos' findings of credibility (as to her evidence or that of the complainants) or the views that she expressed about Ms Zink's co-operation during the investigation.
[101]Overall, Ms Zink was given sufficient detail of the allegations, the evidence of those making the allegations and any relevant documents in order to answer the allegations. Ms Zink was given the opportunity to respond to the allegations in two meetings with Ms Roos and in two written submissions, was given copies of the complainants' statements (in their redacted form) prior to making those written submissions and had access (for a period of time) to her emails and electronic files for the purpose of putting to Ms Roos any information or documents that Ms Zink determined to be relevant.
[102]Many of the other allegations that Ms Zink makes about the findings in the report do not go to issues of procedural fairness but to the substantive outcome of the investigation and her disagreement with Ms Roos' findings of fact. These are, of course, all matters upon which she can make submissions to Mr Galluccio in response to the show cause letter.
The Disciplinary Process: The Show Cause Letter
The statutory provisions and relevant policy
[103]Chapter 6 of the PS Act provides for 'Disciplinary action for public service employees and former public service employees'. The sections in Chapter 6 of relevance are ss 187, 188, 189 and 190.
[104]The phrase 'in disciplining' as used in s 190 has been held to refer to both:[14]
(a) the decision of a chief executive to take disciplinary action which the chief executive considers reasonable in the circumstances, that is, the action provided for in s 188(1); and
(b) the antecedent decision of a chief executive as to whether he or she is reasonably satisfied that particular grounds for discipline exist, those being the grounds set out in s 187.
[14] Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39, [21]-[25].
[105]With respect to procedure, s 190 of the PS Act relevantly provides that 'in disciplining' a public service employee a chief executive must comply with the PS Act and the principles of natural justice. (As discussed below, the principles of natural justice do not apply to a suspension on full remuneration: s 190(2)).
[106]Also of relevance to the content of natural justice in the disciplinary process provided for in Chapter 6 of the PS Act is the Department of Health Human Resources Policy E10 (Policy E10). Policy E10 applies to employees of prescribed hospitals and health services.[15]
[15] ibid, [33]-[34].
The Show Cause Letter
[107]Mr Galluccio, as the chief executive's delegate, has not yet made a disciplinary finding decision or a disciplinary action decision i.e. he has not made either of the decisions provided for in ss 187 and 188. He has issued a show cause letter.
[108]Prior to issuing the show cause letter, the assessment contemplated by clause 1 of Attachment 1 to Policy E10 had taken place. That assessment was that further information needed to be obtained in relation to the complaints that had been made and that this information would be obtained through a fact finding investigation. That assessment was made by Mr Keyes. He explains that in light of the potentially serious nature of the complaints he considered it appropriate that a fact finding investigation be commenced and this be undertaken by an external Investigator. As outlined above, that investigation was conducted in a way which was procedurally fair.
[109]Clause 2 of Attachment 1 to Policy E10 provides that when the delegate is satisfied that all relevant documentation is available to them, and they have given careful consideration to the information, they can make a determination on whether they are reasonably satisfied that there may be grounds for discipline under s 187 of the PS Act and whether to commence a disciplinary process.
[110]In issuing the show cause letter, Mr Galluccio has complied with Clause 2. He has considered Ms Roos' report and made the determination required of him. It is clear from the language used in the show cause letter that Mr Galluccio has not formed the view that the conduct alleged has in fact occurred. He says that he has reached the view that 'as a result of your conduct, if proven, you may be subject to disciplinary action' and that 'no determination of your liability has been made, or will be made, in relation to the allegations until you have had an opportunity to respond'.
[111]The show cause letter identifies which allegations Mr Galluccio will be considering and the provisions of s 187 of the PS Act the conduct alleged would breach if proven.
[112]Mr Galluccio has provided to Ms Zink all of the information on which he intends to rely, which is the Investigation Report, as provided to Ms Zink and relevant legislation and policies. Mr Galluccio, in his statement, confirms that he will only have regard to this information.
[113]There is no basis on the evidence (or, at all) to support the allegation that Mr Galluccio has been 'involved' in the investigation such as to support any finding that he may not bring an impartial mind to bear in his decision making.
[114]Ms Zink's other grievances regarding the show cause letter seek to pre-empt a failure by Mr Galluccio to afford procedural fairness in respect of decisions he has not yet made in the disciplinary process on a number of bases that cannot be substantiated:
(a) that she does not have a copy of the terms of reference: the 'work required' of the Investigator is set out in the report. Ms Zink can test the findings of fact made by Ms Roos against those terms of reference in any submissions she wishes to make to Mr Galluccio;
[364]On 29 June 2018 Zink received written advice from the respondent regarding the commissioning of an investigation and the role of the Investigator in the investigation of complaints that had been made regarding her conduct in the workplace. Attached to that correspondence were details of the allegations which prompted her to generate correspondence where she requested:
·provision of all documentation and witness statements to be relied upon in the course of the investigation; and
·a copy of the appointment letter and the terms of reference for the proposed investigation.
[365]On 6 August 2018, following the 23 July 2018 interview with the Investigator, correspondence was forwarded to Zink under the signature of Galluccio where he expressed his disappointment regarding her unwillingness to respond to each allegation despite having been provided with what he considered to be sufficient information. In any event, he indicated he was prepared to provide what he believed to be relevant extracts of five witness statements prior to her attending a further interview or providing written responses.
[366]Zink in providing written responses to the Investigator on 12 October 2018 again raised concerns in terms of not having been given access to information relevant to the allegations, including the original complaints, and had at all times been consistent in challenging the lack of relevant disclosure. In opening submissions, Zink identified deficiencies in the disclosure process that included:
· having not been provided with copies of all the evidence available to the Investigator in the form;
· statements in full from Hall, Grant, Minchio, Haley and Gianoulis (having only been provided with redacted copies);
· statements or records of interview in respect of Keyes and Kelly; and
· any further statements or records of interview in respect of witnesses interviewed after Zink's written response.
[367]The Investigator/THHS had been reluctant to positively address the requests made by Zink for the production in full of material in their possession said to be relevant to the allegations levelled against Zink and the subsequent investigation of such allegations.
[368]In the evidence during the proceeding, the Investigator provided an explanation on the supply of the redacted statements to Zink as it related to that material. It was the case that there were two categories of redaction, those being:
·material that was very personal, emotive opinion that didn't relate to the factual allegations and in some cases related to the complainant's own personal medical conditions; and
·a large component of the complainants' material raised issues regarding Zink's work performance including her interaction with clients, none of which was covered by the scope of her instructions and were not put to Zink in the investigation.
[369]The Investigator held the view that it was highly unusual to furnish Zink with the redacted statements and it was the first time she had ever engaged in such conduct. Sound reasons existed for not providing such material that included:
·the possibility of people having to work together in the future; and
·the material often contained derogatory or defamatory statements.
[370]The Investigator evidenced that the redaction process had been very difficult and she had left in everything that she thought related broadly to allegations to ensure it was a complete picture. A question arose out of the evidence of the Investigator regarding whether the redacted statements provided to Zink were the same as those provided to the instructors who had engaged her. It was possible she may have picked the wrong one from her filing system. There was also the concession that some issues existed with the uploading of some of the statements in connection with the Investigation Report. The disclosure to date had not included any witness statements taken in connection with the investigation.
[371]The THHS in opposing further disclosure had relied upon the authority of Coutts v Close regarding the obligation to provide unredacted transcripts of interviews between an Investigator and witnesses, where Griffiths J had said:
Generally speaking . . . however, and subject naturally to the particular statutory context, procedural fairness does not require that a decision maker adopt an 'open file' policy which would have the effect of disclosing every submission or piece of evidence to an affected party . . . Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests.[37]
[37] Coutts v Close [2014] FCA 19.
[372]Also, it was the case that to accede to Zink's request it would be at odds with the decision in Wirth where it found that procedural fairness required that during an antecedent fact finding investigation, an employee did not have to be provided with evidence that was not going to be relied upon.
[373]In this case, Zink had been informed that all of the redacted sections of the provided statements contained material that was not relevant to the considerations of the Investigator and in correspondence (dated 18 December 2018), the following advice was given to Zink's lawyers by lawyers acting for the THHS:
As previously stated, our client has engaged Ms Roos to conduct a workplace investigation. Although allegations have been put to your client and her responses sought, this is not a disciplinary process and no disciplinary determinations will be made by Ms Roos. This is a fact finding investigation and, therefore, procedural fairness does not require your client to be provided with copies of statements or recordings of interviews and these will not be provided.
We can confirm that Ms Roos has interviewed Emma Hall, Jennifer Grant, Deanna Minchio, Deborah Haley, Malanie Gianoulis, Sharon Kelly and Kieran Keyes. Your client was provided with the statements produced by the first five interviewees as a matter of courtesy and to encourage her responses to the matters which form the subject of the investigation. The latter two witnesses were only interviewed this week, in response to issues relating to the allegations which were then mentioned by your client in her supplementary statement. These two additional witnesses did not raise any new allegations and, therefore, your client will not be provided with statements from these interviews.
[374]In Wirth, there were questions raised over the failure of the decision maker to meet minimum standards, that before a decision was made on whether or not an allegation was actually established, Dr Wirth ought to have been provided with:
· all the information the delegate intended to rely upon when determining whether an allegation could be substantiated; and
· what evidence was being relied upon to support the allegation.
[375]In this case, Zink was informed that certain material contained in the complainants' statements (redacted) had not been considered relevant to the allegations. On the authority of Wirth there was the appearance of Zink having received all material relevant to the investigation of the allegations. However, it has emerged as a consequence of the Investigator's evidence, that there was some uncertainty about what had been provided to Zink and the Investigator's instructors which requires the issue of disclosure be further considered.
[376]The matter of disclosure is in this instance of more importance than when sought in the investigation stage of the process, because of the fact that Zink is now being required to participate in a show cause process, following the decision of Galluccio that he reasonably believed Zink was liable to discipline under a disciplinary law.
[377]I intend, based upon consideration of the evidence, to vary the disclosure of the complainants' statements to Zink, which amongst other things, provides Zink with material said not to have been considered and if the evidence of the Investigator stands then fears held by Zink would be put to rest. On the other hand, if there exists material that may assist Zink going forward should the disciplinary process continue, then that would be viewed as an extension of natural justice.
[378]I am mindful of the concerns raised against any additional disclosure in respect of the effect it may have should the parties re-establish the workplace relationship, however Zink proceeded to request the additional disclosure with her "eyes wide open" to that factor and this would have to be considered in those terms if such concerns emerge at a later date.
[379]In final written submissions there was an extended proposition advanced by Zink that disclosure ought to reflect the following:
·an order requiring that, before any further consideration of disciplinary action is taken, the respondent is to disclose to the applicant full copies (without redactions) of any complaints, records of interview (including audio recordings), and witness statements obtained during the investigation of the relevant allegations.
[380]In determining if there should be some relief granted to Zink in respect of disclosure, I have considered the full gamut of disclosure sought in final submissions and believe that in its entirety it would be beyond what would reasonably be expected in affording natural justice to Zink.
Any further consideration of disciplinary action be undertaken by a delegate other than Galluccio
[381]In terms of this order sought by Zink, it was the case that in final submissions the THHS conceded that the disciplinary process going forward could not reasonably continue as planned and offered the following as orders appropriate for the resolution of the industrial disputation between the parties:
·the respondent withdraw the show cause notice;
·the chief executive withdraws his delegation of powers to Mr Galluccio and delegates his powers under Chapter 6 of the PS Act, in respect of the applicant's employment, to a person who has not been involved in the initial complaints or any preliminary investigation of those complaints, the suspension decision, the investigation conducted by Ms Roos, the grievance procedure or, this industrial dispute;
·that delegate be provided with the Investigator's report (as provided to the applicant) but excluding the statements made with respect to the applicant's cooperation with the investigation and also excluding the material inadvertently included in the redacted statements of the complainants.
[382]Zink acknowledged the concession by the THHS that the existing delegation be withdrawn and in submissions in reply revisited the previous argument around the continuing involvement of Galluccio in the disciplinary process identifying the following concerns:
·Galluccio's continuing involvement in the investigation process;
·characterisations of Galluccio as having made decisions of an 'administrative nature' during the investigative process; and
·the relationship between Keyes and Galluccio (Manager/subordinate) created a conflict of duty or interest.
[383]On consideration of the position advanced by each party, I intend to make orders regarding the ongoing show cause process that includes the appointment of another delegate to review the ongoing disciplinary process.
Findings
[384]On consideration of the evidence, material and submissions before the proceedings, I make the following findings:
· 17 May 2018 - Suspension was compliant with s 137 of the PS Act and ought not be disturbed;
· 14 January 2019 - Suspension was compliant with s 189 of the PS Act and ought not be disturbed;
· the Investigation Report prepared by Roos in respect of the allegations that had been levelled against Zink by subordinate employees ought not be excluded from any ongoing disciplinary process, on the basis that subject to the requisite standard of proof Zink had failed to establish that the report was deficient to the extent it would warrant such exclusion;
· the THHS be required to extend the disclosure of material to Zink beyond that already provided;
· the existing show cause notice be withdrawn, forthwith; and
· the delegation of powers by Keyes to Galluccio to act as the delegate in respect of the disciplinary process involving Zink be withdrawn forthwith.
Orders
[385]It is ordered:
1. That the Show Cause Notice issued by Galluccio to Zink on 14 January 2019 be withdrawn, forthwith.
2. The THHS Chief Executive (Keyes) pursuant to s 34 of the HHB Act exercise the power to appoint an appropriately qualified person to replace Galluccio as the delegate in the disciplinary process involving Zink.
The delegate ought not be a person subordinate to Keyes or a person who had been involved previously in the disciplinary process relating to Zink. It is likely the replacement delegate will be a person external to the THHS.
3. Once appointed, the delegate should be provided with all relevant documentation including:
·complaints;
·complainants' witness statements;
·any other witness statements;
·Investigation Report; and
·any other material relevant to the disciplinary process.
Note: Any material relating to aspects of Zink's cooperation or otherwise with the investigation is to be withheld from the replacement delegate.
4. Within thirty (30) days of the delegation taking effect, the delegate is required to determine, based upon the material provided to them whether grounds for discipline pursuant to s 187 of the PS Act exist and, if so, should Zink's employment continue to be suspended pursuant to s 189(1) of the PS Act.
5. If the delegate determines that grounds for discipline pursuant to s 187 of the PS Act exist in respect of Zink, a new Show Cause Notice should be issued and at the same time Zink be provided with the complainants' witness statements and any other witness statements to be relied upon by the delegate, unredacted, except in circumstances where there is content that relates to a person's medical circumstances.
6. In the interim, Zink is to remain suspended from employment on the remuneration to which she is entitled for the duration of the suspension.
However, if after thirty (30) days from the appointment of the replacement delegate, no decision has been made regarding whether the disciplinary process is to proceed or otherwise, Zink would be able to make application to the Commission regarding relief in respect of her suspension.
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