QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Jalali v State of Queensland (Queensland Health) [2021] QIRC 301
	
PARTIES:	
	Jalali, Homayoun
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO:
	PSA/2021/135
	
PROCEEDING:
	Public Service Appeal – Fair treatment decision

DELIVERED EX TEMPORE ON:
	25 August 2021	
HEARING DATE:	25 August 2021
	
MEMBER:
	Dwyer IC
	
HEARD AT:	Brisbane
	
ORDER:
	The decision appealed against is confirmed.
	
CATCHWORDS:

LEGISLATION:

	PUBLIC SERVICE - APPEAL - appeal against a fair treatment decision - allegation of disrespectful and bullying comments to staff - allegation of disrespectful behaviour - disciplinary reprimand - appellant claims denial of natural justice - whether decision was fair and reasonable - no finding of procedural unfairness - allegations substantiated - decision fair and reasonable

Industrial Relations Act 2016 (Qld) s 562B, 562C	
CASES:	Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5
	
APPEARANCES:	Mr H Jalali the appellant 

Mr P Sparrow and Ms K Avery for the respondent	

Reasons for Decision

Delivered ex tempore on 25 August 2021

	Background

[1]	Dr Homayoun Jalali is employed as a Senior Visiting Specialist at the Prince Charles Hospital in the Cardiothoracic Surgery Unit. He is employed by the respondent, Queensland Health (Metro North Hospital and Health Service), for approximately 36 hours per fortnight. 

[2]	On 17 August 2020, he was performing a procedure at the Prince Charles Hospital. During the procedure, his interactions with nursing staff assisting him subsequently became the subject of a complaint. 

[3]	Following an investigation, Dr Jalali was subjected to a show cause process whereby he was required to respond to two allegations:

Allegation one:	It is alleged that on Monday 17 August 2020, whilst performing a procedure in Operating Theatre 5 at the Prince Charles Hospital you (Dr Jalali) made repeated and ongoing comments to RN Joseph, which RN Joseph and witnesses described as being disrespectful and bullying.

Allegation two: 	It is alleged that on Monday 17 August 2020, whilst performing a procedure in Operating Theatre 5 at the Prince Charles Hospital you (Dr Jalali) did not comply with the code of conduct when you (he) engaged in general disrespectful behaviour towards a number of staff in the Operating Theatre, including the use of profanities and/or used a raised voice.

[4]	Following receipt of his response to the show cause process, Dr Jalali was advised by correspondence from Ms Tami Photinos on 24 March 2021 that the allegations were substantiated and that she was contemplating issuing him with a reprimand. 

[5]	Dr Jalali now appeals this decision.

[6]	For clarity, the only aspect of the decision that can be the subject of this appeal is the decision that the allegations are substantiated. The proposed penalty is not a decision and is not within my jurisdiction to review.

Statutory framework for public service appeals

[7]	Public service appeals are conducted under the Industrial Relations Act 2016 (Qld) ('the IR Act'). The IR Act establishes the extent of the Commission’s jurisdiction namely, to review a decision. Public service appeals are not a rehearing of the matter. 

[8]	The singular task of the Commission in conducting such appeals is to determine whether the decision under review was fair and reasonable. 

[9]	The powers granted to the Commission under the IR Act are similarly limited. In dealing with a public service appeal, the Commission may make one of three orders:

(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 considered 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.

Submissions of the parties

[10]	Following the issue of directions from my chambers, the parties filed written submissions in this appeal. 

[11]	The submissions of Dr Jalali largely address the complexity of the procedure that he was performing at the time of the alleged incident. It appears from his submissions that he relies on the stressful setting as a means of explaining or mitigating the alleged conduct. 

[12]	Another theme of Dr Jalali’s responses to the complaints is a broader criticism of the training practices of The Prince Charles Hospital in relation to nursing staff. 

[13]	There are further matters raised in Dr Jalali’s appeal to the effect that not all witnesses were spoken to and that there is an assertion of predetermination by the decision maker which I will address shortly. 
[14]	In respect of the allegations and the conduct described by the witnesses, while some comments that are alleged to have been made are expressly denied, Dr Jalali does not otherwise deny many of the comments he is alleged to have made on 17 August 2020. Instead, he explains them as either products of stress or misunderstandings due to cultural differences. Specifically though, he broadly denies using profanities or blaspheming. 

[15]	At the hearing on 25 August 2021, in addition to the matters contained in his submissions, Dr Jalali largely conceded that he had said the phrases attributed to him by RN Joseph in her complaint. 

[16]	The submissions of the respondent in respect of the appeal largely rely on the statements of the complainant and the two witnesses in corroborating the complaint in support of the decision maker. 

Consideration

The allegations 

[17]	The evidence relied on by the decision maker primarily consists of three statements taken from the witnesses including RN Joseph. Each of the witnesses were present for all of or parts of the alleged comments and conduct. Each statement gives a largely consistent account of the types of things that Dr Jalali is alleged to have said and the types of things that Dr Jalali has largely conceded with respect to the allegations of RN Joseph. All of the witnesses regarded the statements of Dr Jalali to be inappropriate.

[18]	Dr Jalali works in what is surely one of the most stressful occupations. The stakes for Dr Jalali on a day-to-day basis as a heart surgeon are literally life and death. Further, in his submissions on 25 August 2021, Dr Jalali displayed a deep concern for patient welfare and a strong commitment to putting patient safety above all else. In making his submissions he impressed me as being entirely sincere in these matters. 

[19]	I have no doubt that the procedure undertaken by Dr Jalali on 17 August 2020 was extremely complex and consequently, produced significant levels of stress for him notwithstanding his many years of experience and, no doubt, his expertise. Having regard to the statements that RN Joseph complains about and that are admitted by Dr Jalali, I can entirely appreciate how such a stressful environment might prompt such statements from even a seasoned professional in times of stress. 

[20]	I further accept that Dr Jalali is sincere in his submissions that he never intended to cause offence to RN Joseph or the other staff. I accept that he is genuinely contrite for any upset that he may have caused in respect of these matters. Ultimately, though, these matters are only able to mitigate his conduct. These matters can be neither an excuse or a defence for Dr Jalali’s actions. 

[21]	While I accepted Dr Jalali was under significant stress and also that he intended no harm, the statements individually and collectively all fall comfortably into the types of statements that would constitute disrespectful comments. I accept that RN Joseph and the other staff present were more than reasonably entitled to feel upset by those comments. 

[22]	Dr Jalali is a highly skilled and experienced professional. Stress and pressure are part of his daily life. Some of that stress may be exacerbated by what he perceives as the shortcomings of the equally dedicated and professional nursing staff who provide him with invaluable support in each procedure. Those nursing staff no doubt equally feel the stress of the high stakes work they are performing. 

[23]	Dr Jalali should be at a point in his career where he can manage his stress reactions. He cannot use the stress and pressure of his working environment as an excuse to denigrate his nurse colleagues. 

Witnesses not interviewed 

[24]	The decision maker primarily relied on the statements of RN Joseph and the other witnesses. Having considered those statements, I note they are comprehensive and consistent. In his submissions and his appeal, Dr Jalali has raised as a contention that there were other witnesses present who have not been or were not spoken to during the investigation or at any other stage.

[25]	Generally, I would not recommend, as a general practice, not interviewing witnesses who might be able to provide direct testimony about relevant events. However, in light of the extent to which Dr Jalali has conceded the statements of RN Joseph, and the compelling and consistent nature of the statements already obtained, it is difficult to imagine what unfairness might flow to Dr Jalali by the failure to call or interview all witnesses who were present.

Denial of natural justice

[26]	In addition to these matters, Dr Jalali has asserted that there was some degree of denial of natural justice arising from what he regards as evidence as predetermination of the matter by the Executive Director who initially conducted the show cause process. 

[27]	By way of brief explanation, the Executive Director at the time the show cause process was initiated was Ms Michele Gardner. Ms Gardner conducted or managed the initial part of the show cause process but subsequently left the role when it was taken over by Ms Photinos in or about December 2020. 

[28]	In between the first show cause letter and the second show cause letter, Ms Gardner handed the responsibility of the matter to Ms Photinos. The decision letter, which was issued by Ms Photinos on 24 March 2021, refers to previous correspondence to Dr Jalali on 18 November 2020 and it reads as if that correspondence was authored by Ms Photinos when, indeed, at that time it was Ms Gardner. 

[29]	Dr Jalali asserts that this represented evidence that Ms Gardner had, in fact, drafted the decision letter before the allegations had been received. 

[30]	The explanation in relation to the language used in the decision letter from Mr Sparrow on behalf of the respondent is that it is an administrative error borne out through the use of a template letter which failed to pick up the reference to the first person contained in the first paragraphs, and to adjust that in recognition of the change in personnel between Ms Gardner and Ms Photinos in the intervening period. 

[31]	In the circumstances, I see no basis to reach any conclusion that there was a predetermination of the matter by Ms Gardner prior to Dr Jalali’s response. 

[32]	In any event, even if there were such a predetermination, Ms Photinos was the Executive Director and remains the Executive Director and there is nothing in the material before me (and no other submission) that would lead me to conclude that Ms Photinos did not genuinely hold the views that she expresses in the decision letter dated 24 March 2021.  

[33]	In the circumstances, I am unable to identify procedural unfairness in these matters as they pertain to Dr Jalali. 

Conclusion

[34]	While I consider that there are significant mitigating circumstances for Dr Jalali, not least of which the stress under which he was working on the day in question, I can similarly see no evidence that the decision maker has not also taken those mitigating circumstances into account. Indeed, the proposed penalty of reprimand, the lowest sanction capable of being imposed, is an obvious reflection of some consideration of those mitigating circumstances.

[35]	In all of the circumstances, I consider that the conclusions of the decision maker to find allegations one and two substantiated were more than reasonably open to her and it follows that I find the decision to be fair and reasonable. 

Order

[36]	In all of the circumstances, I make the following order: 

The decision appealed against is confirmed.