An unreasonable management action?

Recent decisions of the Supreme Court of Queensland have highlighted systemic failings on the part of Queensland’s Statutory Bodies, and particularly Queensland Health bodies, in respect of the processes they have adopted in suspending employees whilst they conduct workplace incident investigations.

The Supreme Court of Queensland in Walters v Hanson & Ors [2020] QSC216, examined the conduct of Metro North Hospital and Health Service District in suspending an employee pursuant to Section 137 of The Public Service Act 2008 (PSA). 

Section 137 of the PSA relevantly states:

“137 Suspension other than as disciplinary action:

• The Chief Executive of a department may, by notice, suspend a Public Service Officer from duty if the Chief Executive reasonably believes the proper and efficient management of the Department might be prejudiced if the officer is not suspended.
• The notice must state:
  1. When the suspension starts and ends; and
  2. The remuneration to which the officer is entitled for the period of the suspension under sub-section (5); and
  3. The effect that alternative employment may, under subsections 6 and 7, have on the entitlement…”

In Walters, the applicant had been provided with a letter purporting to suspend him in accordance with section 137 of the Act.  However, the letter did not indicate the period over which the suspension would be effective and the date that it would end.

Justice Ryan of the Supreme Court of Queensland determined that the notice’s failure to specify the period of and end date of the suspension rendered it ineffective and thereby quashed the suspension.

Natural Justice

In a separate decision of the Supreme Court of Queensland in Braun v Rushbrook & Anor [2020] QSC268 the court examined whether the principles of natural justice applied to the exercise of power to suspend an employee under section 137 of the PSA.

Justice Williams in that decision determined that:

• In the absence of urgency, there must at least be the “irreducible minimum” of natural justice afforded;
• As a minimum, natural justice in the circumstances would be the opportunity to be heard in relation to the decision maker’s grounds for the required belief: namely, the decision maker’s belief that the proper and efficient management of the government entity might be prejudiced if the employee were not suspended;
• The opportunity to be heard should be provided prior to the making of a decision.

This determination is significant in that the “modus operandi” of Queensland Health/Metro North Hospital and Health Service up until that point had been to suspend employees without notice and without providing specific reasons, taking the position that the principles of natural justice did not apply in circumstances where an employee was suspended on full pay. 

How does this apply to the concept of “reasonable management action” under the Workers Compensation and Rehabilitation Act 2003?

Section 32 (5) of the Workers Compensation Rehabilitation Act 2003 (WCRA) has the effect of excluding from the WorkCover Scheme any psychological injuries arising out of the course of “reasonable management action taken in a reasonable way”. 

Consider the following hypothetical scenario:

• A nurse is employed in a public hospital in Queensland;
• The nurse is the subject of a complaint of misconduct by a fellow co-worker with the conduct the subject of the complaint happening in the course of their employment;
• Queensland Health suspends the nurse from their employment citing section 137 of the PSA without providing the details of the complaint, the period over which the investigation will be conducted, the opportunity to be heard prior to suspension or a date by which the suspension will come to an end;
• The nurse is marched out of the public hospital on the date that the suspension letter is provided and told not to return until further notified;
• Quite understandably, the nurse is distraught, unsure of their future and suffers a psychological decompensation into symptoms of depression;
• The nurse sees their GP and is provided with a WorkCover medical certificate and referred for counselling;
• WorkCover Queensland reject the nurse’s claim for compensation on the grounds that the psychological injury has occurred as a result of “reasonable management action being undertaken in a reasonable way”.

The question to be determined will be whether the management action undertaken by Queensland Health has been undertaken in a “reasonable way”. 

The decisions in Walters and Braun make clear that suspension notices that do not contain the required information under Section 137 of the PSA and at least the “irreducible minimum” of natural justice having been afforded prior to making the suspension decision are ineffective and unlawful.

The Administrative Appeals Tribunal decision in Von Stieglitz and Comcare [2010] AATA263 is authority for the proposition that “management action which is unlawful cannot be reasonable”. 

It is my contention that should a public service employee suffer a psychological injury as a result of being suspended from their employment in the circumstances described above, they would not be excluded from pursuing an application for compensation through the WorkCover Scheme.  Put simply, Queensland Health’s failure to comply with its obligations under the PSA in properly suspending the employee’s employment would not be considered “management action undertaken in a reasonable way”. 

Conclusion

It is clear that Queensland government entities, and in particular Queensland Health entities, have failed to properly uphold their obligations when suspending employees under the PSA over a very long period of time.

There are likely to have been hundreds, if not thousands of employees suspended with improper notices since the enactment of the PSA in 2008.

It is likely that a significant percentage of those employees will have suffered psychological injuries as a result of the complete disregard for their rights and welfare displayed by Queensland Health and it’s operating entities over that period.  Up until now, the likely scenario is that all of those employees have omitted to lodge a WorkCover claim or had their WorkCover claim rejected.

Whilst there may still be difficulties in overturning decisions by WorkCover to reject claims which have now had their appeal periods expire, any public service employees in Queensland who have suffered injuries in this type of manner in the past 3 years should seek advice in respect of their potential rights to seek compensation under the WorkCover scheme.