Worker with dementia-affected husband protected from workplace change
The Queensland Industrial Relations Commission (QIRC) recently dealt with a case involving a worker who challenged her employer's decision to change her work schedule from night shifts to day shifts.
The worker argued that the change was unreasonable because it conflicted with her long-established caring responsibilities for her husband.
The worker contended that her employer had misused suspension powers under the Public Sector Act 2022 to force her into an alternative duties arrangement that was incompatible with her personal circumstances.
She maintained that after declining to voluntarily workday shifts, the employer manufactured "serious concerns" about her performance to justify the change.
At issue was whether employers must consider an employee's personal circumstances when directing alternative duties, and whether suspension powers can be lawfully used as a performance management tool. The decision provides important guidance for workplace rights.
The worker was a clinical nurse with 60 years of experience, including 38 years with the Capricornia Offender Health Service. Her employment history was described as unblemished.
In 2019, the worker entered into an arrangement with the Central Queensland Hospital and Health Service to work night shifts exclusively. This arrangement allowed her to care for her husband who suffers from early onset dementia. She continued working night shifts exclusively for almost five years until December 2023.
On 9 October 2023, the worker attended a meeting with a clinical nurse consultant and a nurse educator where various matters were discussed, including the recording of mandatory training activities.
Following this meeting, management claimed there was an agreement for the worker to work one day shift per month to complete mandatory training.
The worker disputed this in an email dated 16 October 2023, stating she had only said "maybe" to the proposal and later had second thoughts. She wrote that she felt uncomfortable about the change, noting she had "enough stress at home" and felt bullied by the request.
After she declined to work day shifts, the employer compiled a list of "serious concerns" about her clinical practice, including issues related to four separate incidents spanning from December 2022 through November 2023.
It's worth noting that one of these incidents occurred after the October meeting, while another predated it by 10 months.
Concerns about the worker’s professional conduct
On 18 December 2023, the worker received correspondence from Executive Director Workforce Division advising of "serious concerns" about her professional conduct relating to "inadequate medical treatment of patients and non-compliance with mandatory training requirements."
This correspondence concluded with a decision to place the worker on alternative duties, effectively suspending her from her normal role under section 101 of the Public Sector Act 2022 (Queensland). In response, she submitted a medical certificate and had been absent on various forms of leave since December 2023.
The case before the QIRC concerned a subsequent decision made on 30 November 2024, which confirmed the continuation of the worker's suspension and alternative duties assignment.
Commissioner Dwyer found that the employer had misapplied section 101(3) of the Public Sector Act in two distinct ways.
"The language of s 101(3) of the Act requires the chief executive to consider 'all reasonable alternatives available to the employee'. It does not invite a consideration of reasonable alternatives in a general sense. It is a consideration that requires specific contemplation of what is reasonably available to the employee," Commissioner Dwyer explained.
The Commissioner noted that the worker's caring responsibilities were well-known to the employer and incompatible with day shifts: "It is an agreed fact of this matter that, at the relevant time, [the worker] has been the primary carer for her ailing husband for at least six years. It is well known and undisputed by [the employer] that [the worker's] obligations as a carer are entirely inconsistent with her working day shifts."
The second issue identified was the improper use of suspension powers as a performance management tool.
"Section 101 of the Act is not intended for the purposes of performance management, even where it occurs incidentally. Yet [the employer's] intent to achieve this is revealed in the decision where the decision maker states: 'I consider that alternative duties will appropriately mitigate any risk to you, other staff, and patients by ensuring that you will not be performing any clinical duties until such time you have completed your outstanding mandatory training and your Performance and Development meeting has occurred,'" the Commissioner stated.
The Commissioner observed this created a contradiction in the employer's approach: "In one sense they are seeking to impose a form of low-key performance management to (hopefully) correct conduct giving rise to their concerns. But on the other hand, they draw upon the alleged seriousness of their concerns about clinical practices to evoke the powers of suspension."
The Commissioner concluded that while the employer was "legitimately entitled to stand [the worker] down in light of the alleged serious concerns that emerged in late 2023," the alternative duties assigned were not reasonable given her caring responsibilities.
"Faced with the dilemma of [the worker's] refusal to agree to day shifts, [the employer] had any number of options available to address their concerns... A period of notice and consultation would have been all that was required to implement a change in the roster," the Commissioner suggested.
The Commissioner set aside the decision and returned the matter to the employer to make a fresh decision within seven days, noting: "The implementation of de facto performance management via s 101(3) of the Act is not fair or reasonable especially where performance concerns have not been formally raised or responded to by an employee."
The decision highlights the need for employers to consider employees' personal circumstances when implementing workplace changes and to use proper procedures for performance management rather than misusing suspension powers.
