QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Cummings v State of Queensland (Queensland Health) [2022] QIRC 72	
PARTIES:	
	Cummings, Kathryn Leanne
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)	
CASE NO:	PSA/2021/253	
PROCEEDING:	Public Service Appeal – Disciplinary Decision
	
DELIVERED ON:	9 March 2022
	
MEMBER:	Knight IC
	
HEARD AT:	On the papers	
ORDERS:	The decision appealed against is confirmed.	
CATCHWORDS:	PUBLIC SERVICE – DUTIES AND OFFENCES IN RELATION TO OFFICE – appeal under s 197 of the Public Service Act 2008 – where five allegations were substantiated against the appellant, and one allegation was partially substantiated – where disciplinary action imposed – where appellant appeals the disciplinary action – whether the disciplinary action fair and reasonable – decision confirmed	
LEGISLATION AND INSTRUMENTS:	Code of Conduct for the Queensland Public Service

Commission Chief Executive Guideline 01/17 Discipline cls 11.9, 11.10, 14.1

Directive 14/20 Discipline cls 8.5, 8.6

Industrial Relations Act 2016 (Qld) s 562B

Public Service Act 2008 (Qld) ss 187, 188, 197	
CASES:	Briginshaw v Briginshaw (1938) 60 CLR 336

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)	

Reasons for Decision

[1]	Ms Kathryn Cummings is employed by the State of Queensland through Queensland Health. She is employed as an Enrolled Nurse in the Specialist Outpatient Department ('the SOPD') at the Bundaberg Hospital within the Wide Bay Hospital and Health Service ('the WBHHS').
[2]	In a decision letter dated 27 June 2021 ('the decision'), Ms Debbie Carroll, Chief Executive of the WBHHS, informed Ms Cummings she would be imposing the disciplinary action of a reprimand, as well as the following management action:
(a)	a requirement to attend a meeting with the Executive Director of Nursing and Midwifery to discuss professional standards with respect to codes of conduct, standards of practice and codes of ethics; and
(b)	the implementation of a performance improvement plan ('a PIP');
(together, 'the disciplinary action').
[3]	By appeal notice filed 16 July 2021, Ms Cummings appeals the decision under ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PS Act'). Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein. Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.
[4]	In my view, the decision was fair and reasonable.
[5]	My reasons follow.
Background
[6]	In September 2020, Ms Carroll appointed an external investigator to investigate allegations of inappropriate conduct, bullying and harassment within the SOPD at the Bundaberg Hospital. During that investigation, several allegations were made against, among others, Ms Cummings.
[7]	On 1 February 2021, the external investigator delivered his report which relevantly found that, of the twenty allegations put to Ms Cummings, five had been substantiated and one had been partially substantiated.
Show Cause Process
[8]	On 28 February 2021, Ms Carroll informed Ms Cummings of the outcome of the external investigation and detailed the allegations the external investigator considered had been substantiated and partially substantiated against her, which were as follows:
Allegation Two
It is alleged that you were rude and aggressive towards another nurse, Ms Christine Pike, by stating to her, "you will not go anywhere, you will stay and do your work, she can come up here".
Allegation Three
It is alleged that you engaged in a disrespectful and offensive manner towards one of your colleagues, Ms Chiquita Collins, when you were taking a break outside in that you yelled at her and stated, "you have no idea what it's like".
Allegation Ten
It is alleged that on 2 September 2020 you spoke rudely and abruptly to Ms Debbie Gamlin and you held up your hand to her like a stop sign.
Allegation Thirteen
It is alleged that on multiple occasions you would slam documents onto the desk in a bullying and intimidating manner towards others.
Allegation Sixteen [Partially Substantiated]
It is alleged that over a period of many years, you colluded to undermine the Nurse Unit Manager (NUM), Ms Lola Bray, including victimising her, constantly referring to her as a "bitch" in personal conversations with each other and engaged in conduct that was harmful to her emotional and psychological health. It is further alleged that you engaged in reverse bullying of Ms Bray.
Allegation Nineteen
It is alleged that during a team facilitation day on 10 August 2020, regarding the culture of the SOPD unit, you behaved in a disrespectful, denigrating, openly aggressive and offensive manner towards the Nurse Unit Manager (NUM), Ms Lola Bray, whilst she was present in the room.
[9]	Ms Cummings was invited to provide a response to the allegations prior to any proposal regarding disciplinary action being made, which she did through her industrial representative on 30 March 2021.
[10]	On 3 June 2021, Ms Carroll again wrote to Ms Cummings informing her she had considered Ms Cummings' response and determined that the allegations remained substantiated and partially substantiated on the balance of probabilities. On this basis, Ms Carroll determined there were grounds to discipline Ms Cummings under ss 187(1)(b) and (g) of the PS Act, which relevantly provide:
187	Grounds for discipline
	(1)	A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
		...
		(b)	been guilty of misconduct;
		...
		(g)	contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
[11]	Ms Carroll then advised that, given the serious nature of the substantiated and partially substantiated allegations, she was giving consideration to the following disciplinary action:
(a)	a reprimand;
(b)	forfeiture of a remuneration increment for a period of 12 months;
(c)	a meeting to discuss professional standards with respect to codes of conduct, standards of practice of codes of ethics; and
(d)	the implementation of a PIP.
[12]	Ms Cummings was invited to respond to the proposed actions which she did, through her representatives, on 14 June 2021. In her response, Ms Cummings focussed primarily on her position that the allegations did not constitute breaches of the Code of Conduct for the Queensland Public Service or the PS Act and consequently should not have been substantiated. In doing so she: 
•	denied allegation 2 was capable of being substantiated on the evidence;
•	denied allegation 3 was capable of being substantiated on the evidence and requested the identity of an undisclosed witness be revealed;
•	denied allegation 10 was sufficiently serious to warrant disciplinary action;
•	admitted her conduct was abrupt and direct, but otherwise denied allegation 13 was sufficiently serious to warrant disciplinary action;
•	with respect to the alleged use of the word 'bitch', denied allegation 16 occurred and noted the term was frequently used by other staff members so Ms Cummings should not be penalised;
•	with respect to the alleged collusion, denied allegation 16 should have been substantiated on the evidence, or lack thereof; and
•	with respect to allegation 19, admitted her conduct was abrupt at times and her communication style can be perceived as direct, and stated she would ensure she would be mindful of her conduct in future.
[13]	Ms Cummings' representative then made the following submissions with respect to the proposed disciplinary action:
46.	Our client considers that your decision is based on allegations that should not have been substantiated on the balance of probabilities.
47.	A reduction of classification is, therefore, unduly harsh.
48.	Our client is employed on a full-time basis. A reduction in classification would create severe financial impact to her family responsibilities.
49.	Our client contends that, in circumstances where any substantiation was made, a more appropriate finding would be the imposition of a reprimand.
50.	Our client agrees to attend a meeting with Ms. Sewell, and complete the requirements of a Performance Improvement Plan.
The Decision
[14]	After setting out the substantiated and partially substantiated allegations, the decision relevantly provides:
I am in receipt of your response ... dated 18 June 2021.
In your response you advise:
•	'I consider that your decision is based on allegations that should not have been substantiated on the balance of probabilities'.
•	'A reduction of classification is, therefore, unduly harsh'.
•	'I am employed on a full-time basis. A reduction in classification would create severe financial impact to my family responsibilities'.
•	'I contend that, in circumstances where any substantiation was made, a more appropriate finding would be the imposition of a reprimand'.
•	'I agree to attend a meeting with Ms. Sewell, and complete the requirements of a Performance Improvement Plan'.
Further considerations:
Your view pertaining to the substantiation and partial substation of the allegations has been noted however, the reasoning I provided in my last correspondence to you, dated 3 June 2021, remains unchanged.
It has been noted that you are of the view that a Reprimand is an appropriate disciplinary penalty for your substantiated and partially substantiated allegations, and that you have accepted the implementation of a Performance Improvement Plan (PIP) as well as a meeting with Ms Fiona Sewell, Executive Director of Nursing and Midwifery Services, WBHHS.
The behaviour and conduct demonstrated, by you, was not at the expected standards of a nursing professional or an employee of the Wide Bay Hospital and Health Service. Employees are expected to behave and conduct themselves in accordance with the WBHHS Values such as Collaboration, Accountability, Respect, Excellence and Through Patients' Eyes. Employees are expected to also abide by the expectations outlined within the Code of Conduct for the Queensland Public Service.
It is my expectation that you will ensure that in future you behave and conduct yourself in such a manner that positively reflects the WBHHS, with its Values in the forefront of your mind.
My decision in relation to disciplinary action
I have carefully considered all the information available to me including your response dated 30 March 2021 and 14 June 2021 (received 18 June 2021), however all the information may not be specifically mentioned in my decision.
I acknowledge that you accept the proposed disciplinary penalty of a Reprimand and the implantation of a Performance Improvement Plan (PIP) as well as a meeting with Ms Sewell, Executive Director of Nursing and Midwifery Services, WBHHS.
Have regard to the above factors, I have decided the appropriate disciplinary action to impose in the circumstances is a Reprimand. I believe this action is reasonable and appropriate having considered the substantiated and partially substantiated allegations are of a serious nature.
In addition, the following management actions will be implemented:
•	A meeting with Ms Fiona Sewell, Executive Director of Nursing and Midwifery, to discuss professional standards with respect to codes of conduct, standards of practice and codes of ethics pursuant to the Nursing and Midwifery Board (AHPRA).
•	Implementation of a Performance Improvement Plan (PIP).
A record of this action will be retained on a separate confidential disciplinary file.
...
Relevant Provisions
[15]	The PS Act relevantly provides:
188	Disciplinary action that may be taken against a public service employee
	(1)	In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.
		Examples of disciplinary action—
•	termination of employment
•	reduction of classification level and a consequential change of duties
•	transfer or redeployment to other public service employment
•	forfeiture or deferment of a remuneration increment or increase
•	reduction of remuneration level
•	imposition of a monetary penalty
•	if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments
•	a reprimand
	...
	(5)	In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
	(6)	An order under subsection (1) is binding on anyone affected by it.
[16]	The applicable directive for the purposes of s 188(5) is Directive 14/20 Discipline ('the Directive'), which relevantly provides:
8.5	Show cause process for proposed disciplinary action 
	(a)	The chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action). 
	(b)	The chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented. 
	(c)	The disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 188 of the PS Act. 
	(d)	In proposing appropriate and proportionate disciplinary action, the chief executive should consider: 
		(i)	the seriousness of the disciplinary finding 
		(ii)	the employee's classification level and/or expected level of awareness about their performance or conduct obligations 
		(iii)	whether extenuating or mitigating circumstances applied to the employee's actions 
		(iv)	the employee's overall work record including previous management interventions and/or disciplinary proceedings 
		(v)	the employee's explanation (if any) 
		(vi)	the degree of risk to the health and safety of employees, customers and members of the public 
		(vii)	the impact on the employee's ability to perform the duties of their position 
		(viii)	the employee's potential for modified behaviour in the work unit or elsewhere 
		(ix)	the impact a financial penalty may have on the employee 
		(x)	the cumulative impact that a reduction in classification and/or pay‑point may have on the employee 
		(xi)	the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding. 
		...
	(f)	The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension.
8.6	Decision on disciplinary action 
	(a)	A chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken. 
	(b)	The chief executive must inform the employee of the decision in writing, including: 
		(i)	the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice 
		(ii)	excluding a termination decision, information that the employee may appeal the decision on disciplinary action 
		... 
	(c)	A chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that: 
		(i)	the revised disciplinary action is objectively less onerous than the original action proposed, or 
		(ii)	the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or 
		(iii)	the employee has suggested the disciplinary action as an appropriate alternative penalty. 
Ms Cummings' Submissions
[17]	Ms Cummings argues the WBHHS failed to comply with several provisions of the Commission Chief Executive Guideline 01/17 Discipline ('the Guideline'). Referring to cl 11.9, Ms Cummings contends the WBHHS failed to take early intervention to mitigate the concerns which led to the external investigation. Specifically, she notes she did not have the benefit of informal management of her conduct which may have prevented the need for a disciplinary process.
[18]	Ms Cummings contends she has been singled-out and 'targeted' to deflect complaints she and other nursing staff made against their nurse unit manager ('NUM'), and the WBHHS's own failure to act with respect to those complaints. She notes decision-makers are required to be unbiased in that they do not have an actual, possible, or perceived conflict of interest in the matter or its outcome.
[19]	Referring to incidents in mid-2017 and late 2018, Ms Cummings submits those incidents should have been subject to informal complaints on the day of the relevant occurrences, and subsequent local action if appropriate. She submits other nursing staff, including her NUM, failed to follow policy and procedure. This, she submits, amounted to a breach of duty of care by her NUM if Ms Cummings' behaviour was in fact affecting her colleagues in the workplace. Having regard to these failures, Ms Cummings contends she is 'at a loss' to understand how the WBHHS has determined the allegations are 'serious' and the proposed disciplinary actions appropriate considering the lack of action at the time of the relevant incidents.
[20]	Further, she disputes the disciplinary process has been conducted in a timely manner noting it has been ongoing since 20 November 2020 when she was first notified of the allegations. She submits the WBHHS has proceeded 'at its own pace', delivering responses to her correspondence over months and with no regard to the process set out under s 187 of the PS Act.
[21]	Finally, she relies on cl 14.1 of the Guideline and submits the decision-maker failed to consider all the information available to them. 
The WBHHS's Submissions
[22]	After setting out, in some detail, the factual and procedural history of this matter, the WBHHS contends the disciplinary action is fair and reasonable in the circumstances and ought to be confirmed. It maintains the imposition of a reprimand is appropriate having regard to the seriousness of the substantiated and partially substantiated allegations, and submits the purpose of the additional management action is to support Ms Cummings with her professional development in improving her interpersonal communication skills.
[23]	The WBHHS notes concerns with Ms Cummings' conduct and communication have previously been raised with her, as evidenced by the file note attached to her submissions and dated 28 July 2017.
[24]	It denies it failed to have regard to all relevant material, relying on statements made in each of the show cause letters to the effect that Ms Cummings could provide written responses and Ms Carroll would consider those responses in making her decision. It also relies on the following statement made in the decision in support of the fact that Ms Carroll did in fact consider the material provided by Ms Cummings:
I have carefully considered all the information available to me including your responses dated 30 March 2021 and 14 June 2021 (received 18 June 2021), however all the information may not be specifically mentioned in my decision.
[25]	Finally, the WBHHS notes the allegations against Ms Cummings resulted from an external investigation undertaken by an external investigator and denies any allegations of bias on the part of Ms Carroll as the final decision-maker.
Ms Cummings' Reply
[26]	In reply, Ms Cummings explained she had accepted the proposed disciplinary action in her response to the show cause process as she could see no way of disproving the allegations and believed she 'had to be made an example of'.
[27]	She disputes the WBHHS could have substantiated the allegations against her on the balance of probabilities, submitting that until allegations are proven beyond reasonable doubt, they are merely assertions. Even if considered on the balance of probabilities, she contends the 'Briginshaw standard' should apply.
[28]	Ms Cummings submits the WBHHS failed to acknowledge she has not previously been subject to formal complaints, a disciplinary process or performance management, or been required to attend Code of Conduct training during her employment.
[29]	She questions why all relevant material is not mentioned in the decision letter if the WBHHS is acting in a manner that is transparent, honest and in accordance with policy and procedure.
[30]	Finally, Ms Cummings maintains the WBHHS treated her less favourably in that it has pursued the allegations against her but failed to follow up with complaints regarding her NUM and the toxic culture of the SOPD.
Was the Disciplinary Decision Fair and Reasonable?
[31]	Section 562B(2) of the IR Act provides that I must decide the appeal by reviewing the decision appealed against. 
[32]	The decision appealed against is the decision letter dated 27 June 2021 and attached to Ms Cummings' appeal notice. The decision confirmed the disciplinary action to be imposed was a reprimand, and further management action, in the form of meeting with a senior executive and the implementation of a PIP.
[33]	Ms Cummings also identifies this decision as the decision she wishes to appeal at the outset of her submissions.
[34]	My role, therefore, is to determine whether the decision in respect of the disciplinary action, and the decision-making process associated with the decision, are fair and reasonable. 
[35]	The allegations, which were the subject of the disciplinary findings made against Ms Cummings were:
Allegation Two
It is alleged that you were rude and aggressive towards another nurse, Ms Christine Pike, by stating to her, "you will not go anywhere, you will stay and do your work, she can come up here".
Allegation Three
It is alleged that you engaged in a disrespectful and offensive manner towards one of your colleagues, Ms Chiquita Collins, when you were taking a break outside in that you yelled at her and stated, "you have no idea what it's like".
Allegation Ten
It is alleged that on 2 September 2020 you spoke rudely and abruptly to Ms Debbie Gamlin and you held up your hand to her like a stop sign.
Allegation Thirteen
It is alleged that on multiple occasions you would slam documents onto the desk in a bullying and intimidating manner towards others.
Allegation Sixteen [Partially Substantiated]
It is alleged that over a period of many years, you colluded to undermine the Nurse Unit Manager (NUM), Ms Lola Bray, including victimising her, constantly referring to her as a "bitch" in personal conversations with each other and engaged in conduct that was harmful to her emotional and psychological health. It is further alleged that you engaged in reverse bullying of Ms Bray.
Allegation Nineteen
It is alleged that during a team facilitation day on 10 August 2020, regarding the culture of the SOPD unit, you behaved in a disrespectful, denigrating, openly aggressive and offensive manner towards the Nurse Unit Manager (NUM), Ms Lola Bray, whilst she was present in the room.
[36]	In late June 2021, Ms Carroll, in her capacity as Chief Executive of the WBHHS, confirmed the substantiation and partial substantiation of the allegations set out above, further advising that, having regard the information available, grounds existed for Ms Cummings to be disciplined pursuant to s 187 of the PS Act in circumstances where she 'contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action'.
[37]	The disciplinary action initially proposed by the WBHHS in response to the substantiated allegations was:
(a)	a reprimand;
(b)	forfeiture of a remuneration increment for a period of 12 months;
(c)	a meeting to discuss professional standards with respect to codes of conduct, standards of practice of codes of ethics; and
(d)	the implementation of a PIP.
[38]	After considering submissions from Ms Cummings in respect of the proposed action, which in part appeared to accept a reprimand, the forfeiture of a remuneration increment was not pressed by Ms Carroll in the final decision.
[39]	In support of this appeal, Ms Cummings now argues the decision-maker has not considered all the information that was provided to them. Separately, she infers the decision-maker was biased and/or that a conflict of interest existed.
[40]	Having considered the submissions provided to the Commission, I have been unable to identify any evidence or materials which support either conclusion. 
[41]	Firstly, the show cause materials, and any conclusions reached by the decision-maker indicate the submissions of Ms Cummings were not only considered but were also summarised and reflected in the reasons for decision. 
[42]	Secondly, a component of the suggested disciplinary action was dropped by the decision‑maker after receiving Ms Cummings' response. 
[43]	Thirdly, it is clear the original investigation was conducted by an external investigator. 
[44]	I am also not persuaded that any actual or possible conflict of interest existed in respect of the decision-maker.
[45]	In its submissions, the WBHHS highlights an earlier meeting between Ms Cummings and two other senior staff where concerns were raised with her, in respect of her communication and professionalism. 
[46]	The meeting, including a summary of the discussions and the outcome were captured in a file note included within the materials provided to the Commission by Ms Cummings, who has not disputed the content of the document. 
[47]	Although Ms Cummings was not provided with the names of complainants, during the meeting she was advised that several staff had raised concerns about the way she communicated. The file note indicates she was provided with examples of how to communicate with her colleagues in a more effective or discreet manner. 
[48]	The record of the meeting does not suggest Ms Cummings received a 'formal warning'. Instead, the interaction between Ms Cummings and the other managers participating in the meeting, is best described as local management action in response to concerns raised by other staff in relation to the manner in which Ms Cummings was communicating and interacting with her colleagues. 
[49]	Likewise, in this appeal, the common theme reflected across all six substantiated or partially substantiated allegations are deficiencies in respect of Ms Cummings' communication and interaction with other staff, including her NUM.
[50]	For example, it was determined that over a period of several years, Ms Cummings had colluded to undermine her NUM, which extended to victimising her and repeatedly referring to her as a 'bitch' in personal conversations, which was ultimately considered to be harmful to the NUM's emotional and psychological health.
[51]	It seems the difficulties with Ms Cummings' communication and conduct were not limited to her NUM, with several other allegations in respect of poor behaviour towards other employees within the SOPD also substantiated. 
[52]	Throughout Ms Cummings' submissions, she appears to repeatedly attribute or blame the behaviour reflected in the allegations, on her NUM, in part by suggesting the NUM was responsible for the culture within the unit. 
[53]	Separately, Ms Cummings alleges she has been disadvantaged by the WBHHS's failure to manage her performance and conduct sooner. 
[54]	In this respect, I have some sympathy for Ms Cummings. It is incumbent on employers to manage their employees and address grievances, or poor workplace culture, in a timely manner. A failure to do so can result in significant challenges for those departments, agencies and employees involved.
[55]	However, on balance, after considering the seriousness of the substantiated allegations, in combination with the earlier attempt by management within the WBHHS to raise concerns about the way in which Ms Cummings interacted with other employees, I have concluded that the proposed disciplinary action, in all the circumstances, was fair and reasonable. 
[56]	Importantly, although the proposed disciplinary action could be considered at the lower end in terms of its severity, it is clear it is designed to deter Ms Cummings against acting in a similar manner towards any other employee in the future, which is, in my view, an entirely sensible and measured approach. 
Conclusion
[57]	For the reasons given above, the decision in relation to the disciplinary action was fair and reasonable.
[58]	I order accordingly.
Order
The decision appealed against is confirmed.