Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317

Date: 14 September 2021
Court/Tribunal: Queensland Industrial Relations Commission
Judicial Officer/Tribunal Member: Pidgeon IC
Human Rights Act 2019 (Qld) Sections: ss 15, 31, 32, 34, 58
Rights Considered: Right to recognition and equality before the law, Right to a fair hearing, Rights in criminal proceedings, Right not to be tried or punished more than once
Other Legislation: Industrial Relations Act 2016 ss 562B, 562C; Public Service Act 2008 ss 187, 188, 192A, 194, 195; Code of Conduct for the Queensland Public Service; Directive 14/20: Discipline
Keywords: Civil Procedure; Public Law Considerations

This matter concerned a fair treatment appeal against a finding that grounds for discipline had been established after the appellant was convicted of fraud and her employer (the respondent) found her guilty of misconduct under the Public Service Act. The appellant referred to their right to a fair and public hearing (section 31), right to legal representation and the use of a witness in a criminal trial (sections 32(2)(d)-(h)) and right not to be tried or punished more than once (section 34).

Background

Misconduct under s 187(4)(b) of the Public Service Act is ‘inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service’: at [29]. A review of transcripts from criminal proceedings in which the appellant was convicted of fraud revealed that the appellant’s employment with the respondent was made public. The respondent stated that the appellant’s conduct ‘undermines the public’s confidence and trust in the Health Service and brings the organisation into disrepute’: at [37].

Right to a fair and public hearing

The appellant’s submission was that it was not fair for the disciplinary finding to rely on what flowed from her proper exercise of her right to a fair and public hearing (section 31) and right to legal representation and the use of a witness in a criminal trial (section 31(2)(d)-(h)). The appellant submitted that her employment with the respondent was stated in open court as it went to the context of a character reference provided by her supervisor. The appellant submitted that ‘[f]ormulating decisions on the basis of the transcript of or the legal argument presented at a fair and reasonable hearing was not reasonable’: at [44] and that if the respondent had properly considered her human rights, it would have ‘viewed the conduct in the context of the conduct alone’: at [83].

The respondent argued that it was reasonable for them to consider anything said in open court and that, because these matters were discussed in open court, they were relevant to the respondent’s consideration of whether the conduct reflected seriously and adversely on the public entity: at [63].

The Commission found that it was not the publicising of the conduct that was the problem, but the fact of the conduct itself: at [109]. The Commission therefore reasoned that the disciplinary finding flowed from the appellant’s ‘conduct subject of the allegation in the show cause letter’ and was not ‘made in reliance of what flowed from her exercise of her human rights to a fair and public hearing’: at [111]. Furthermore, the Commission rejected the appellant’s submission that the respondent’s reference to the court transcript offended her human rights and found that there was nothing improper about a representative of the respondent informing themselves of the appellant’s conduct by accessing a publicly available document: at [112].

Right not to be punished more than once

The appellant submitted that her right not to be punished or tried more than once under section 34 of the Act meant that no grounds existed to bring forth an allegation because she had already been tried, punished and convicted for the offence: at [46], [50].

The respondent submitted that the appellant is conflating her punishment in the criminal jurisdiction with disciplinary action by her employer (an administrative process) and that the disciplinary finding does not attempt to punish the appellant for fraud: at [60], [66]. The respondent also submitted that it limited the appellant’s rights only to the extent that was reasonable and demonstrably justifiable in accordance with s 13 and highlighted the fact that, if the appellant’s submissions were accepted, ‘the State of Queensland (as an employer) would be prevented from taking disciplinary action against public servants for any conduct resulting in a criminal conviction’: at [69].

The Commission found the suggestion that a public service disciplinary process was an attempt to try or punish the appellant a second time to be ‘misguided’: at [122].

Other Relevant Discussions regarding Human Rights

The Commission rejected the appellant’s submission that ‘the respondent formulated any and all decisions on the basis of [the appellant] exercising her rights, renders her unequal under the law and not “entitled to equal protection of the law without discrimination” pursuant to s 15(3)’ of the Human Rights Act: at [121].

The Commission considered the respondent’s duty to consider the appellant’s human rights as a public entity at [125]-[128].

The Commission noted that ‘proper consideration’ is not clearly defined in the Human Rights Act or the relevant Directive but that it had been considered in relation to s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (comparable to s 58(1) of the Queensland legislation): at [131]. The Commission applied the test stated by the Supreme Court of Victoria in Castles v Secretary of the Department of Justice [2010] VSC 310 at [185]-[186].

On the basis of the judgment in Castles, the Commission acknowledged that ‘the simple inclusion in a decision of a sentence to the effect that “human rights have been taken into consideration” does not provide the person affected by the decision with any useful information’ but did not think it was necessary for the decision maker to write ‘in great detail’: at [132]. The Commission provided that ‘the inclusion of a statement to this effect may provide some confirmation to the employee that “proper consideration” has occurred’ as a decision maker provide such a statement if they had properly considered the employee’s human rights: at [133].

Furthermore, the Commission found that ‘proper consideration’ involves explaining the reasoning for limiting human rights under s 13: at [135].

Decision

The Commission found that the decision to commence a disciplinary process was not capable of being appealed but that the appellant was able to appeal the disciplinary finding: at [96], [100].

The Commission concluded that the respondent’s decision that finding the conduct to be misconduct was reasonably justified and confirmed the original decision: at [139], [141].

Visit the judgment: Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317