By Mike Toten Freelance Writer

Use of suspension powers to try to force a long-serving nurse to work day shifts when it clashed with her carer’s responsibilities was (unintentionally) “quite cruel”, according to the Queensland Industrial Relations Commission. The Commission found that the performance review system used by the employer was inappropriate for the situation, and ordered it to revise its decision to suspend her and place her on alternative duties.

 

Facts of case

The nurse had worked for her current employer for 38 years, and as a nurse for almost 60 years. She was also the carer for her husband, who had dementia, and had an arrangement to work night shifts only. When the employer requested that she work one day shift per week for training reasons, she rejected it. The employer then revealed some “serious concerns”, listing four alleged incidents that it had not previously mentioned to her. The employer linked those concerns to the employee not receiving the training it had required. It used the Queensland Public Service disciplinary powers to suspend her and placed her on alternative duties that included day shifts but removal from clinical work until after she completed the training. It also ordered her to attend a performance and development meeting. After that, she went and stayed on leave, which eventually became unpaid leave. After lodging a grievance that was rejected, she appealed against the decision of suspension and placement on alternative duties.

 

Unfair to use suspension powers when alternatives available

The Commission found it was unfair and unreasonable to use the suspension powers to compel the nurse to work day shifts, and to use them as a “hybrid” tool of performance management.

She had a well-established agreement to work only night shifts, and the reason for it was well-known to the employer. Therefore she was entitled to both a reasonable expectation that it would continue, and also to be given reasonable notice and consultation prior to any changes. The employer used the suspension powers when it could not reach agreement with her, and doing so was “quite cruel”, although not intentionally so. The suspension powers were a disciplinary tool, but it tried to use them for performance management, as a misguided attempt to deal with the alleged “concerns” about her performance. As those “concerns” had never been previously mentioned, a disciplinary process at that stage was not justified. The legislation required the employer to consider “all reasonable alternatives to the employee” to suspension – meaning that the employee’s personal circumstances must be considered.

The employer was legitimately entitled to stand down the employee (with pay) over the alleged concerns, provided it then investigated and handled them in a fair manner, which included raising them with the employee and hearing her side of the story.

 

Decision

The Commission upheld the nurse’s appeal and set aside the employer’s decision, ordering it to come up with a different decision within seven days. Noting that the employee had been disadvantaged by having delayed lodging her appeal, it recommended that the employer suspend

her on full pay from the date of its original decision, while it addressed its performance concerns in a procedurally fair manner.

 

What this means for employers

While this case was decided under Queensland Public Service Legislation, it has the general lesson for employers that disciplinary powers and performance management processes are separate management tools and should not be substituted for each other, nor used as a “hybrid” approach (as the Commission described in this case).

Performance concerns should be raised with the employee first, not suddenly revealed as a tactic to try to coerce an employee. Depending on the outcome of a fairly conducted performance management process, disciplinary measures may be required later.

 

Read the judgment

Buckton v State of Queensland (Queensland Health) [2025] QIRC 65 (13 March 2025)