QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Brandis v State of Queensland (Gold Coast Hospital and Health Service) [2024] QIRC 158

PARTIES:	
	Brandis, Kerry James
Appellant

v

State of Queensland (Gold Coast Hospital and Health Service) 
Respondent
	
CASE NO:
	PSA/2024/28
	
PROCEEDING:
	Appeal of a disciplinary decision
	
DELIVERED ON:
	25 June 2024
	
MEMBER:

HEARD AT:	Pratt IC

On the papers

ORDERS:
	1.	The appeal is allowed.

2.	The Decision is set aside and substituted for a decision that the Appellant be reprimanded.
	
CATCHWORDS:	INDUSTRIAL LAW – APPEAL –– where appellant director of department of 170 staff – where appellant subject of two complaints that were substantiated by independent investigation report and that occurred 2 years previous – where appellant showed contrition for actions – where appellant has run same department without incident since – where appellant has otherwise unblemished record – where appellant reprimanded and redeployed to non-managerial role without reduction in remuneration on basis of complaints being substantiated – where respondent says it is unsafe to allow the appellant to continue in a managerial role – where State of Queensland (Gold Coast Hospital and Health Service) says correct respondent is State of Queensland (Gold Coast Hospital and Health Service) because appellant is employed as a 'senior health service employee' under the Hospital and Health Boards Act 2011 (Qld) – consideration of whether correct respondent is State of Queensland (Gold Coast Hospital and Health Service) because appellant is employed as a 'senior health service employee' under the Hospital and Health Boards Act 2011 (Qld) – held correct respondent is State of Queensland (Gold Coast Hospital and Health Service) because appellant is employed as a 'senior health service employee' under the Hospital and Health Boards Act 2011 (Qld) –  consideration of whether appellant is entitled to rights and benefits of PS Act despite being employed under the Hospital and Health Boards Act 2011 (Qld) – held the appellant is entitled to rights and benefits of Public Sector Act 2022 (Qld) despite being employed under the Hospital and Health Boards Act 2011 (Qld) – consideration of nature of public sector appeals under the Public Sector Act 2022 (Qld) – whether decision to reprimand and redeploy the appellant without reduction in remuneration fair and reasonable – where respondent's finding that it is unsafe to allow the appellant to continue in a managerial role not reasonably open to respondent on the facts – held decision to redeploy the appellant without reduction in remuneration not fair and reasonable – appeal allowed.
	
LEGISLATION:

CASES:	Hospital and Health Boards Act 2011 s 74B

Public Sector Act 2022 (Qld) s 8, s 130, s 131, s 133

Industrial Relations Act 2016 (Qld) s 562B, s 562C

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16

Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97

Perrett v State of Queensland (Queensland Police Service) [2019] QIRC 154

Schubert v State of Queensland (Queensland Health) [2024] QIRC 128

Reasons for Decision

[1]	This is a public service appeal by Dr Kerry Brandis ('the Appellant') of a disciplinary decision dated 31 January 2024 ('the Decision') to:

a.	reprimand the Appellant; and

b.	redeploy the Appellant into a clinical but non-managerial role within the Anaesthetics Department without reduction in remuneration. 

[2]	The Decision was made by the Executive Director, People and Operations of the Gold Coast Hospital and Health Service ('GCHHS'). The appeal is made pursuant to section 131(1)(c) of the Public Sector Act 2022 (Qld) ('PS Act').

Background

[3]	The Appellant is and has been the Director of Anaesthetics at the GCHHS for over 30 years, having held that position since 1993. By all accounts, his record during that time is exemplary, apart from the two complaints that gave rise to the Decision.

[4]	Those complaints spawned an extensive independent investigation. The report resulting from that investigation is comprehensive and detailed, numbering 100 pages, excluding over 30 attachments ('Investigation Report'). It was provided to the Appellant in draft form and his responses to it were the subject of replies by the investigator provided in the Investigation Report. 

First complaint

[5]	The first complaint had to do with the Appellant taking detrimental action against Dr Dale Kerr for alleged bullying by Dr Kerr. The history of this complaint can be summarised as follows. 

[6]	At the relevant time, Dr Kerr was in charge of rostering for the GCHHS Anaesthetics Department. The Australian and New Zealand College of Anaesthetists ('ANZCA') told the Appellant that a review of the GCHHS Anaesthetics Department discovered that some trainees had accused Dr Kerr of bullying. Those bullying accusations included allegations that Dr Kerr had misused his rostering responsibilities. ANZCA indicated to the Appellant that they intended to make an "above the line" recommendation in relation to these complaints. The significance of the "above the line" recommendation is that failure to comply with such a recommendation will result in the loss of ANZCA traineeship accreditation for the GCHHS.

[7]	When the Appellant was told of ANZCA's intention to make an "above the line" recommendation", the Appellant and his co-directors jointly and hastily decided to relieve Dr Kerr of his rostering responsibilities. This decision was also motivated by past, but unsubstantiated, complaints about Dr Kerr's misuse of his rostering responsibilities, as well as a desire to remove a "target on [Dr Kerr's] back". In making this decision, the Appellant and the co-directors did not substantiate the claim and Dr Kerr was not given the opportunity to respond to it.

[8]	The Appellant's decision took a toll on Dr Kerr. Creating and managing rosters took up large parts of Dr Kerr's working days, and it was a task he took pride in. It was also quite a visible task. So to have lost such a significant responsibility without being afforded procedural fairness – it is easy to see how Dr Kerr would feel wronged and embarrassed by such a decision in those circumstances.

[9]	In addition to being stripped of his rostering responsibilities, Dr Kerr was no longer the preferred or default option for relieving the Appellant or other co-director's roles during leave periods. Instead, Dr Kerr had to apply for these relief roles like anyone else who was interested in the opportunities. The Appellant said that he had, for a while, been intending to advertise these relief roles instead of making Dr Kerr the default option. However, the Appellant conceded during the investigation that the complaints against Dr Kerr spurred him to actually make this change. 

[10]	In the end, the prognostications of doom that ANZCA foretold never came to bear. Instead, the final report, which took many months longer than expected, delivered a "below the line" recommendation in relation to the bullying allegations against Dr Kerr. A "below the line" recommendation is akin to a suggestion that one should look into the issue. It is not nearly as serious a situation as an "above the line" recommendation is.

[11]	In hindsight, the Appellant is contrite about how he treated Dr Kerr. The Appellant says that there was no established procedure about dealing with an "above the line" recommendation from ANZCA. The Appellant nonetheless concedes that removing Dr Kerr's rostering responsibilities was an overreaction and that the decision was made without procedural fairness being afforded to Dr Kerr. The Appellant subsequently met with and apologised to Dr Kerr, although Dr Kerr did not accept this apology. Dr Kerr was not returned to his rostering responsibilities, as that task has since become a shared one undertaken in a collaborative way.

Second complaint

[12]	The second complaint was that the Appellant treated Dr Gemma Duncan with disrespect in a way that was inconsistent with the Respondent's policies and that did not ensure Dr Duncan's health and safety. 

[13]	The complaint arose following the Appellant's conduct while discussing Dr Duncan's request to change her work arrangements. Dr Duncan, who was a full-time employee, had requested to work .5 FTE at the GCHHS so she could pursue a .5 appointment at the Princess Alexandra Hospital ('PA Hospital') to enable her to live in Brisbane while trying to have a baby. 

[14]	The Appellant was not receptive to Dr Duncan's request, believing the request to be premature. He also cited a GCHHS policy of generally not allowing less than .75 FTE and said that he wanted "committed people who work here most of the time." The Appellant also said that Dr Duncan should have waited until she was pregnant to have made this request. The Appellant suggested, as an alternative, that Dr Duncan work full-time at the PA Hospital, which would be closer to home. He said that the GCHHS would not be left in the lurch if Dr Duncan made such a move, as others could fill her role.

[15]	The investigator found that the Appellant made inappropriate comments about wanting "committed people" and suggesting that Dr Duncan work just at the PA Hospital. The Appellant's comments that others could fill her role made Dr Duncan feel undervalued and replaceable. The Appellant defended his actions saying that he was simply trying to manage a situation that was sprung on him having regard to what he understood the relevant rule to be. The Appellant says that, when he said others could fill Dr Duncan's role, he was simply trying to explain to Dr Duncan that she should not feel guilty about leaving the GCHHS. These comments about others filling Dr Duncan's role were found to be inappropriate on that basis the Appellant failed to appreciate how those words would be interpreted by a person in the shoes of Dr Duncan. So too it was found in the Investigation Report that the Appellant was dismissive of the request and failed to give proper consideration to it.

[16]	While the Appellant conversed with Dr Duncan about the request, it came up that Dr Duncan was trying to have a child on her own because she no longer had a partner. In response to this, the Appellant was found to have said words to the effect of "you can't do that", and later, "good luck with everything and make sure you keep practising, because we all love practising." The innuendo of the latter comment was found to be that Dr Duncan should be having sexual intercourse. Immediately after making those remarks, the Appellant was found to have stated to Dr Duncan that he was only joking. However, Dr Duncan took offence to the remark and the investigation found it to be an inappropriate remark. 

[17]	Despite his initial resistance, the Appellant did go on to try and secure for Dr Duncan a .5 FTE role at the GCHHS. At the time the Appellant was taking steps to secure such a role, however, the PA Hospital took a hard-line stance against part-time engagements of the sort that Dr Duncan was seeking. The PA Hospital told Dr Duncan that it would not agree to a .5 FTE appointment – it had to be full-time or nothing. At the same time that Dr Duncan was seriously considering this offer from the PA Hospital, the Appellant was closing in on securing an offer of a .5 FTE appointment at GCHHS for Dr Duncan. However, the Appellant's efforts to secure Dr Duncan a .5 FTE role at GCHHS were in vain as Dr Duncan subsequently accepted a full-time appointment with the PA Hospital.

[18]	Throughout this process, the Appellant maintains that he believed he was acting in accordance with the policy but concedes that the policy position was actually far less rigid than he once thought. The Appellant apologised to Dr Duncan for his actions and expressed deep regret for any offence that he caused Dr Duncan. The Investigation Report acknowledges that the Appellant and his co-directors have since become familiar with the updated flexible work arrangements policy. That includes a finding that those parties have worked together with others to revise their approach to flexible working arrangements within the Anaesthetics Department, including reconsidering the rule of generally not allowing any appointments less than .75 FTE.

Investigation findings and discipline

[19]	The Investigation Report concluded that the two complaints were generally substantiated. It was found that the Appellant engaged in inappropriate workplace behaviour by taking detrimental action against Dr Kerr and inappropriately responding to Dr Duncan's request for a flexible working arrangement.

[20]	By way of letter to the Appellant, on 29 November 2023, the Respondent issued the Appellant with a show cause notice and found that, following the Investigation Report's findings, the allegations were substantiated. The Respondent then determined that the Appellant had contravened, without reasonable excuse, the Code of Conduct for Queensland Public Servants in a way that was sufficiently serious to warrant disciplinary action.

[21]	The Appellant argued in response that there was no basis for the proposed punishment of removing all managerial responsibilities. The Decision was issued nonetheless. The Decision imposed the penalty of a reprimand and redeployment to a non-managerial clinical position within the Anaesthetics Department of the GCHHS, without reduction of remuneration. It is the redeployment element of the Decision that the Appellant seeks to appeal.

Issues

[22]	Before outlining the key issue in these proceedings, it is necessary to address a threshold issue raised by the Respondent. In its submissions, the Respondent argued that the named respondent to the proceedings was incorrectly stated as the State of Queensland (Queensland Health) when it should have been the GCHHS. The Respondent submits that the Appellant is (and was at all relevant times) a 'senior health service employee' as defined and employed pursuant to the Hospital and Health Boards Act 2011 (Qld) ('the Health Boards Act'). Hence, the submission is that the Appellant is employed by GCHHS, not the Department and it is the GCHHS that should be the Respondent in these proceedings. 

[23]	As to the primary issue on appeal, some of the factual elements remain disputed. But the Appellant does not take issue in this appeal with the findings of fact upon which the Decision was based. The focal point of this appeal is the reasoning underpinning the redeployment of the Appellant to a non-managerial role without loss of pay. The Appellant does not challenge the reprimand.  Essentially, the Appellant's claim is that the redeployment to a non-managerial role is disproportionate to the wrongdoing found to have occurred and that it is harsh, unfair and unreasonable.

[24]	Accordingly, the primary issue is whether that part of the Decision directing redeployment is fair and reasonable.

Correct respondent

[25]	The Respondent's submission is that the Appellant is a "senior health service employee" pursuant to s 74B of the Health Boards Act, which means he was an employee of the GCHHS, not the Department. That is not challenged by the Appellant. I accept that the Appellant was employed by the GCHHS and that the Decision was a decision of the GCHHS. 

[26]	The Respondent has not challenged the Appellant's standing to bring this appeal. However, clarifying the Appellant's standing is worthwhile. The PS Act is relatively new and there has been a substantial shift in how its rights and entitlements may be accessed by employees who are employed under another Act.

[27]	Pursuant to s 8(1)(d) of the PS Act, the GCHHS is a "public sector entity" for the purposes of the PS Act.  That is – an agency, authority, commission, corporation, instrumentality, office or other entity not mentioned in the preceding subsections established under an Act for a public or State purpose.  

[28]	The Appellant is a person employed under the Health Boards Act, not under the PS Act.  Pursuant to s 133(c) of the PS Act, standing to bring an appeal such as this requires the would-be appellant to be a "public sector employee" as defined in the PS Act.  

[29]	Under the predecessor to the PS Act, being employed under another Act may have disentitled an employee to access some rights and benefits bestowed upon employees who had been employed under that predecessor to the PS Act. However, a "public sector employee" under the PS Act includes a person employed under another Act in a "public sector entity". In this case, the Appellant is such a person – being employed under the Health Boards Act in the GCHHS.  

[30]	I agree with the submission that the correct respondent should be the GCHHS, not the Department. Whilst not challenged by the respondent, it is important to clarify that the Appellant has standing to bring this appeal pursuant to the PS Act, even though he is employed under another Act.

Relevant law

Relevant legislation 

[31]	Section 562B of the Industrial Relations Act 2016 (Qld) ('IR Act') says:

(1)	This section applies to a public service appeal made to the commission.

(2)	The commission must decide the appeal by reviewing the decision appealed against.

(3)	The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.

(4)	For an appeal against a promotion decision or a disciplinary decision under the Public Sector Act 2022, the commission—
(a)	must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
(b)	may allow other evidence to be taken into account if the commission considers it appropriate.

[32]	Section 562C of the IR Act says:

(1)	In deciding a public service appeal, the commission may—
(a)	confirm the decision appealed against; or
(b)	for an appeal against a promotion decision—set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive made by the Public Sector Commissioner that the commission considers appropriate; or
(c)	for another appeal—set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

(2)	In deciding an appeal against a promotion decision, the commission may set the decision aside only if the commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the Public Sector Act 2022, a regulation or a directive made by the Public Sector Commissioner under that Act.

[33]	Section 130 of the PS Act says:

A person may appeal against a decision if—
(a) an appeal may be made against the decision under section 131; and
(b) the person is entitled to appeal against the decision under section 133.

[34]	Section 131(1)(c) of the PS Act says:

(1) An appeal may be made against the following decisions—…
… (c) a disciplinary decision;…

[35]	Section 133(c) of the PS Act says:

The following persons may appeal against the following decisions—
…(c) for a disciplinary decision—a public sector employee or former public sector employee aggrieved by the decision if the employee is entitled to appeal under a directive;…

Relevant case law

[36]	Appeals of this nature are by way of a review, not a rehearing. In State of Queensland (Queensland Police Service) (No. 2), his Honour, Deputy President Merrell, considered a long line of authorities on the relevant test. His Honour stated that the test to apply is whether the decision is 'fair and reasonable' within the plain meaning of that phrase. His Honour relevantly held that consideration of the "legal standard of reasonableness in the judicial review of an administrative decision is not apt to describe the function that a Member of the Commission performs" in an appeal of this nature. His Honour further held that the task in such appeals is to review the relevant decision and decide if it was 'fair and reasonable' – "not whether the decision was unreasonable having regard to the legal standard of reasonableness". 

[37]	As Industrial Commissioner Dwyer recently emphasised, the role of the Commission "does not extend to disturbing a decision that was reasonably open to the decision maker, even where the Commission might have decided the matter differently". Conversely, as Industrial Commissioner Caddie recently noted, decisions based on findings that are not reasonably open to a decision maker are prone to being set aside on appeal.

Submissions

[38]	The parties put on extensive submissions and supporting materials. I have considered all of them in detail, including the Investigation Report. I have, however, only outlined the key relevant submissions below.

The Appellant's submissions

[39]	The Appellant's essential submission is that the penalty imposed is harsh, unfair and unreasonable in all of the circumstances because it is not demonstrably justified when taking into account all of the circumstances. The Appellant makes a number of arguments in support of this submission. First, he points out that the decision is based on incidents that occurred approximately two years ago. Second, the Appellant says that he has undertaken training at his own initiative to address any knowledge gaps that may have led to those incidents. And third, the Appellant draws attention to the fact that he has continued to lead the Anaesthetics Department successfully without further incident since then.

[40]	The bulk of the Appellant's attacks against the Decision are directed towards the Decision finding that there were health and safety risks associated with allowing the Appellant to continue in a managerial role and be in charge of people. The Appellant points to the inconsistency between that finding and the Appellant's otherwise exemplary record that spans more than 30 years. The Appellant further points out that he has never sought to downplay or trivialise the impact that his actions had on Dr Kerr and Dr Duncan. Instead, the Appellant in fact apologised to each and has expressed a great deal of remorse over his actions. The Appellant also points out that his actions were motivated by a genuine but mistaken belief that he was acting in accordance with the relevant policy at the time.

[41]	Further, the Appellant submits that the finding that he can no longer be trusted to safely manage staff is entirely inconsistent with many other facts. There is the fact that the Respondent has left the Appellant in that role for over a year since the Investigation Report was presented. There is also the fact that the Respondent has not only accepted, but in fact commended, the Appellant on how he has reflected on his conduct, apologised for his mistakes and taken significant steps at his own initiative to ensure that no such incidents occur in the future. 

The Respondent's submissions

[42]	The Respondent argues that the penalty is appropriate having regard to the complaints that were made. However, the Respondent does not articulate why or elaborate on what facts the Decision based that conclusion upon. The Respondent maintains that the penalty decision was tailored to address the unique risk arising from the Appellant's conduct. The primary risk identified by the Respondent is that the Appellant is in a senior leadership position and that the Respondent has an obligation to maintain a safe workplace. The Respondent does not identify how, in the Decision, the conclusion is reached as to a risk, let alone that it is so substantial a risk that an appropriate way to control it is to remove all managerial responsibilities from the Appellant. Nor does the Respondent address the above-mentioned arguments advanced by the Appellant. The Respondent says that the Decision took into account the Appellant's employment record and lengthy employment history. Yet, the Respondent does not explain exactly how the Decision did that, nor how that process resulted in the relevant conclusion. The closest the Respondent comes to doing so is by suggesting that because the Appellant was at such a senior level, he ought to be held to a higher standard. 

[43]	The Respondent also submits that the Appellant's conduct, as substantiated in the Investigation Report, was sufficient basis to conclude in the Decision that the Respondent no longer has confidence in the Appellant's ability to lead, create and maintain a safe workplace free from inappropriate behaviour. However, again, the Respondent does not articulate how the Investigation Report's findings led to the conclusion in the Decision. Nor does the Respondent deal with the above-mentioned inconsistencies between such a conclusion and the totality of the agreed facts.

Consideration

[44]	The Appellant makes a number of submissions about the Decision's conclusion that there were health and safety risks associated with allowing the Appellant to continue in a managerial role. Those submissions are, summarily put, that the incidents are firmly in the past and the Appellant has led the Anaesthetics Department without incident since, has shown contrition for his actions, has sought help through training undertaken at his own initiative and has an otherwise exemplary and extensive record of employment in such a role. I find those submissions persuasive.

[45]	The cornerstone of the Respondent's submissions is that there were health and safety risks associated with allowing the Appellant to continue in a managerial role. The Respondents arguments in support of these submissions do not survive scrutiny. The Respondent says that the Decision took into account the Appellant's employment record when making the Decision. However, it seems to me entirely inconsistent with the agreed facts to conclude that it is not safe to leave the Appellant in charge of people. The Appellant has an otherwise long and exemplary history of managing a substantial team of 170 or so staff. It is difficult to reconcile the Respondent's conclusion that it is unsafe to leave the Appellant in charge of people when that is precisely what the Respondent has seen fit to do for about a year since the Investigation Report findings were issued. 

[46]	It is a recurring theme in the Respondent's submissions to state that the proposed penalty of redeployment to a non-managerial role is proportionate, fair and reasonable in the circumstances, but without stepping out how that conclusion was reached. The closest the Respondent comes to doing so is referring to the finding that there are risks associated with the Appellant remaining in his current position moving forward. In total, the Respondent's submissions are superficial and do not persuade me that the Decision was reasonably open on the facts. 

[47]	On my assessment, the finding that it is unsafe to leave the Appellant in charge of people is very much at odds with the facts that were before the decision-maker at the relevant time. The Appellant's lengthy and otherwise unblemished period of managerial service, and the incident-free history since the incidents in question while remaining in his managerial role, prove that the Appellant is a competent manager. The Appellant's self-reflection, contrition and self-motivated improvement, all of which the Respondent has commended, prove that the Appellant possesses the emotional intelligence expected of an effective manager. 

[48]	That evidence is at odds with the conclusion that it is no longer safe to leave the Appellant in a managerial role. On the facts as I assess them, that conclusion was not open to be drawn. 

[49]	It follows that I conclude that the part of the Decision which proposed redeployment of the Appellant to a non-managerial role was not fair and reasonable in the circumstances. I therefore order that the Decision be set aside. 

[50]	Had the Appellant not already carried out reparations such as apologising and attending the sort of training that he has attended, I would have included such in the substituted decision. However, in the circumstances, the substituted decision is simply confined to discipline in the form of a reprimand only. I order accordingly.

Order
1.	The appeal is allowed 

2.	The Decision is set aside and substituted for a decision that the Appellant be reprimanded.