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The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service

 

[2020] QIRC 67

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 067

PARTIES:

The Australian Workers' Union of Employees, Queensland

(Applicant)

v

Gold Coast Hospital and Health Service

(Respondent)

CASE NO:

TD/2019/11

PROCEEDING:

Application for reinstatement

DELIVERED ON:

8 May 2020

HEARING DATES:

18 and 19 November 2019

DATES OF WRITTEN SUBMISSIONS:

Respondent's submissions: 24 January 2020

Applicant's submissions: 21 February 2020

Respondent's submissions in reply: 28 February 2020

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDER:

The application is dismissed

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – Applicant's member employed as Protective Services Officer – discipline procedure under Public Service Act 2008 – disciplinary finding that Applicant's member used inappropriate force towards patients and made inappropriate comments – disciplinary decision of dismissal – whether dismissal harsh, unjust or unreasonable – dismissal not harsh, unjust or unreasonable – application dismissed

LEGISLATION:

Hospital and Health Boards Act 2011, pt 9

Industrial Relations Act 2016, s 316 and s 320

Public Service Act 2008, s 187 and s 188

CASES:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

(Bruce) Campbell Gordon v Department of Corrective Services [2009] QIRC 18

Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410

Aird v Department of Community Safety, Queensland Ambulance Service [2013] QIRC 185

Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kuhl v Zurich Financial Services Australia [2011] HCA 11; (2011) 243 CLR 361

Mathieu v Higgins [2008] QSC 209

Manly Council v Byrne [2004] NSWCA 123

Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

Pillai v Messiter (No 2) (1989) 16 NSWLR 197

Queensland Teachers' Union of Employees (for Norman Wayne Armstrong) v State of Queensland acting through Department of Education, Training and the Arts [2009] QIRC 11

Scott v La Trobe Regional Hospital [2019] FWC 5680

APPEARANCES:

Mr J. Harding of The Australian Workers' Union of Employees, Queensland.

Mr G. Brown and Ms W. Currey of the Gold Coast Hospital and Health Service.

Reasons for Decision

Introduction

  1. [1]
    Mr Roger (Eric) Lam commenced employment with the Gold Coast Hospital and Health Service ('the Health Service') on 1 October 2013.[1]  On 24 February 2014, Mr Lam was employed as a Protective Services Officer ('PSO') within the Health Service[2] and worked at the Gold Coast University Hospital ('the Hospital').
  1. [2]
    In September 2018, the Health Service advised Mr Lam that he may be liable to be disciplined under the Public Service Act 2008 ('the PS Act') in that he may be guilty of misconduct or that he may have contravened, without reasonable excuse, a standard of conduct applying under the Code of Conduct for the Queensland Public Service ('the Code').  The advice concerned four allegations. The first three allegations were that Mr Lam used inappropriate force towards patients of the Health Service during code black emergency responses.  The fourth allegation was that he had made inappropriate comments regarding a patient to two other employees during a code black emergency response. 
  1. [3]
    Following a disciplinary process in which the Health Service found that the four allegations made against Mr Lam were substantiated, by letter dated 29 January 2019 Mr Ron Calvert, Chief Executive of the Health Service, advised Mr Lam that he was dismissed with immediate effect.
  1. [4]
    By application filed on 6 February 2019, the Australian Workers' Union of Employees, Queensland ('the AWU') contends that Mr Lam's dismissal was harsh, unjust or unreasonable within the meaning of the Industrial Relations Act 2016 ('the Act'). 
  1. [5]
    The remedy sought is Mr Lam's reinstatement with an order that he be paid the amount of remuneration lost between the date of his dismissal and the date of reinstatement.  In the alternative, the AWU seeks Mr Lam's re-employment.  Further in the alternative, the AWU contends that if Mr Lam's reinstatement and re-employment are impracticable, then an order should be made that Mr Lam be paid compensation.
  1. [6]
    The issues are:
  • did Mr Lam engage in the conduct the subject of the four allegations and, if so, did he engage in misconduct as alleged in the first three allegations and did he contravene the Code as alleged in the fourth allegation?
  • if so, was Mr Lam's dismissal harsh, unjust or unreasonable having regard to s 320 of the Act? and
  • if Mr Lam's dismissal was harsh, unjust or unreasonable, what remedy should be ordered?
  1. [7]
    For the reason that follow, I find that:
  • Mr Lam did engage in the misconduct the subject of first three allegations; and
  • Mr Lam's dismissal was not harsh, unjust or unreasonable having regard to s 320 of the Act.

Background

The responsibilities of PSOs

  1. [8]
    The responsibilities of PSOs employed by the Health Service include:
  • providing internal security services, including routine and regular patrols within the Health Service's facilities;
  • assisting with emergency responses as a member of the Incident Response Team as directed;
  • actively contributing to the de-escalation of patient responses, behaviour and incidents by utilising endorsed evidence-based contemporary practices;
  • following defined service quality standards, occupational health and safety policies and procedures, relating to the work being undertaken, in order to ensure high quality, safe services and workplaces; and
  • taking reasonable care for their own health and safety and taking reasonable care to ensure their acts or omissions do not adversely affect the health and safety of others.[3]
  1. [9]
    The evidence before the Commission included audio and video footage from body worn cameras of various PSOs.  It is obvious, from that evidence, that in performing their duties, the PSOs employed at the Hospital have to deal with patients who, for a variety of reasons, do not follow the directions of Health Service employees, become verbally argumentative and in some cases act in a physically aggressive manner. It is equally obvious that, in some of those circumstances, some patients require direct, physical restraint by PSOs. 

The investigation of the allegations and the disciplinary process

  1. [10]
    In February and March 2018, concerns were identified by the Health Service about the amount of force used by Mr Lam on three occasions when the Security Services Team was called to respond to code black calls at the Hospital.[4]  A code black call is one made by a staff member when anyone is in a threatening situation and it is believed that a person's safety is at risk.[5]  In April 2018, a complaint was made that Mr Lam had made inappropriate comments during a code black when he allegedly said words to the effect that he wanted to slap a patient.[6] The matters concerning the amount of force used by Mr Lam were referred to the Crime and Corruption Commission ('CCC') which then advised that the Health Service could investigate the allegations and that further supervision of the CCC was unnecessary.[7]
  1. [11]
    Following that, Ms Donna Scovell of Ashdale Workplace Solutions was appointed, under pt 9 of the Hospital and Health Boards Act 2011, to undertake an investigation of the four allegations made against Mr Lam.[8]
  1. [12]
    The four allegations investigated by Ms Scovell were:
  • on 8 February 2018, at approximately 10.22 pm, Mr Lam allegedly used inappropriate force towards Patient UR 628423 during a 'code black' emergency response (Security Incident SIS028064).  It was alleged that when physical force was used to return the patient to the bed, Mr Lam put his fingers under each side of the patient's jaw and held the patient in that manner;[9]
  • on 18 March 2018, at approximately 2.45 pm, Mr Lam allegedly used inappropriate force towards Patient UR1170587 during a 'code black' emergency response (Security Incident SIS029567).  It was alleged that when the patient was being escorted in arm restraints, Mr Lam used pain compliance restraints;[10]
  • on 21 March 2018, at approximately 11.05 pm, Mr Lam allegedly used inappropriate force towards Patient UR 1159140 during a 'code black' emergency response (Security Incident SIS029709).  It was alleged that when the patient resisted being escorted out of the Hospital, Mr Lam applied a pain compliance technique;[11] and
  • on 7 April 2018, at approximately 11.20 pm, Mr Lam allegedly made inappropriate comments regarding Patient UR 112361, to a Ms Stephanie Cognet, Clinical Team Coordinator, during a 'code black' emergency response (Security Incident SIS030341).  It was alleged that Mr Lam said words to the effect of: 'I want to slap him around' and/or 'Can I slap him'.[12]
  1. [13]
    As part of her investigation, Ms Scovell:
  • interviewed, amongst other persons, Mr Matthew Jackson, Workplace Health and Safety Education Manager for the Health Service and Mr Lam;
  • reviewed relevant correspondence and statements; and
  • reviewed the relevant body worn camera footage.
  1. [14]
    In August 2018, Ms Scovell provided her final report to the Health Service ('Ms Scovell's report'). The summary of her findings stated:

The investigation focused on three alleged incidents of PSO Lam using inappropriate force on patients, and, if the decision-maker accepts the evidence and reasoning outlined in this report, then each of these were substantiated on the balance of probabilities as follows:

  1. PSO Lam used inappropriate force towards Patient UR 628423 during a code black emergency response on 8 February 2018.
  1. PSO Lam used inappropriate force towards Patient UR 1170587 during a code black emergency response on 18 March 2018.
  1. PSO Lam used inappropriate force towards Patient UR 1159140 during a code black emergency response on 21 March 2018.

In relation to the fourth allegation that PSO Lam made comments to the effect that he wanted to slap / smack a patient, PSA Lam did not deny making the comments which could be heard on his BWC footage of the incident. He said that he made the comments to make light of the situation. There was sufficient evidence therefore, to substantiate the following allegation:

  1. PSO Lam made inappropriate comments to the CTC regarding Patient UR 112361 during a code black emergency response on 7 April 2018.[13] 
  1. [15]
    By correspondence to Mr Lam dated 4 September 2018, Ms Rita Hudson, Acting Executive Director, People and Corporate Services, advised Mr Lam that she was of the view that he may be liable for disciplinary action pursuant to ss 187 and 188 of the PS Act.  This was in respect of four allegations, namely:
  • on 8 February 2018, at approximately 10.22 pm, Mr Lam used inappropriate force towards Patient UR 628423 during a 'code black' emergency response (Security Incident SIS028064) ('Allegation one');
  • on 18 March 2018, at approximately 2.45 pm, Mr Lam used inappropriate force towards Patient UR 1170587 during a 'code black' emergency response (Security Incident SIS029567) ('Allegation two');
  • on 21 March 2018, at approximately 11.05 pm, Mr Lam used inappropriate force towards Patient UR 1159140 during a 'code black' emergency response (Security Incident SIS029709) ('Allegation three'); and
  • on 7 April 2018, at approximately 11.20 pm, Mr Lam made inappropriate comments regarding Patient UR 112361 to Ms Cognet and to PSO Anthony Geros during a 'code black' emergency response (Security Incident SIS030341) ('Allegation four').[14]
  1. [16]
    Ms Hudson, in her correspondence:
  • particularised, in some detail, each of the four allegations;
  • stated that in respect of the first three allegations, she considered there may be grounds for Mr Lam to be disciplined:
  1. pursuant to s 187(1)(b) of the PS Act, in that he may be guilty of misconduct, namely, inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a), and further, or in the alternative;
  2. pursuant to s 187(1)(f)(ii) of the PS Act, in that he may have contravened, without reasonable excuse, cl 4.1 of the Code;[15]
  • stated that in respect of the fourth allegation, she considered there may be grounds for Mr Lam to be disciplined pursuant to s 187(1)(f)(ii) of the PS Act in that he may have contravened, without reasonable excuse, cls 1.5 or 1.1 of the Code;[16]
  • afforded Mr Lam the opportunity to show cause in writing, within 14 calendar days of receipt of her letter, why he should not be disciplined in relation to the allegations;[17] and
  • annexed to her correspondence a number of documents including Ms Scovell's report and the four Security Incident Reports that were the subject of the four allegations.[18]
  1. [17]
    Mr Lam was also advised that the body worn camera footage of the four incidents, the subject of the allegations, was available for viewing and that he was able to view that footage.[19] 
  1. [18]
    Following an extension of time granted by the Health Service, by letter dated 5 October 2018, Mr Lam, through the AWU, responded to the Health Service.
  1. [19]
    In very broad summary, it was submitted by Mr Lam that:
  • in respect of Allegations one, two and three, he did not use inappropriate force towards the patients in the particular circumstances that faced him;[20]
  • in respect of Allegation four, he did make the comments alleged, however they were made in a light-hearted nature to bring some humour to the situation in which he found himself;[21] and
  • there were several inaccuracies provided by the witnesses and management as part of Ms Scovell's report, no written statements had been provided by the numerous PSOs named as witnesses, and no patients involved in the allegations made any complaint regarding his conduct.[22]
  1. [20]
    By letter dated 6 December 2018, Ms Hannah Bloch, Executive Director, People and Corporate Services, informed Mr Lam, after considering all the information available to her, that she considered each of the allegations were substantiated on the balance of probabilities. 
  1. [21]
    In respect of the first three allegations, Ms Bloch considered there were grounds to discipline Mr Lam pursuant to s 187(1)(b) of the PS Act in that he was guilty of misconduct, namely, inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a), or, if she was wrong about that, there were grounds to discipline Mr Lam pursuant to s 187(1)(f)(ii) of the PS Act in that he had contravened, without reasonable excuse, cl 1.5 of the Code.[23]
  1. [22]
    In respect of the fourth allegation, Ms Bloch considered there were grounds to discipline Mr Lam pursuant to s 187(1)(f)(ii) of the PS Act in that he had contravened, without reasonable excuse, cl 1.5 of the Code.[24]
  1. [23]
    Ms Bloch gave Mr Lam seven calendar days from the date of his receipt of her letter to show cause why the disciplinary action of the termination of his employment should not be imposed. In providing Mr Lam that opportunity, Ms Bloch set out the matters the delegate of the Chief Executive of the Health Service would consider in determining whether to impose that disciplinary action.[25]
  1. [24]
    Mr Lam responded by letter to Ms Bloch sent on 21 December 2018 in which he:
  • requested that his employment with the Health Service continue;
  • stated that terminating his employment would severely impact his ability to financially support his family as he was the sole wage earner in the family and that he cared for his disabled wife;
  • stated that terminating his employment would put him and his family in severe hardship; and
  • urged the Health Service, as an employer that understands diversity and values its employees, to consider his personal circumstances in regard to its decision.[26]
  1. [25]
    By letter dated 29 January 2019, Mr Calvert after considering all information available to him, including Mr Lam's response to Ms Bloch's letter, terminated Mr Lam's employment with immediate effect.[27] 
  1. [26]
    Mr Calvert, in making that decision and while acknowledging Mr Lam's submission that ending his employment with the Health Service would have a detrimental impact on Mr Lam and his family, stated;

Protective Services Officers are placed in a position of trust and are delegated the authority necessary to use a limited amount of force to maintain the safety of patients, staff and others when they are in the hospital.  The substantiated allegations show you have misused this power delegated to you by using more force than was necessary on three separate occasions with three different patients, when the patient had been effectively restrained by the security team and your actions were not necessary or reasonable.  This behaviour was not consistent with the training you received in Occupational Violence Prevention and shows a blatant disrespect for the care and well-being of the patient, and the safety of your colleagues.  Your actions were further compounded when you made disrespectful comments about another patient to a colleague and the Clinical Team Coordinator when you attended an emergency response.

Based on the information available to me, I am of the view you repeatedly demonstrated behaviour towards patients during emergency responses which I consider is unacceptable and cannot be excused.  Further, I note you attended refresher training in Occupational Violence Protection (OVP) on 7 March 2018, just before you responded to the 'code black' incidents described in allegations two and three.  Given the similarities between the substantiated allegations and the lack of improvement shown following OVP training, I consider further education or managerial support is unlikely to change or improve your behaviour.[28]

The relevant statutes and legal principles

The Public Service Act 2008

  1. [27]
    Section 187 of the PS Act provides:

Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    performed the employee’s duties carelessly, incompetently or inefficiently; or
  1. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or

(ea) contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—

  1. (i)
    failing to disclose a serious disciplinary action; or
  1. (ii)
    giving false or misleading information; or
  1. (f)
    contravened, without reasonable excuse—
  1. (i)
    a provision of this Act; or
  1. (ii)
    a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  1. (iii)
    a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.
  1. (2)
    A disciplinary ground arises when the act or omission constituting the ground is done or made.
  1. (3)
    Also, a chief executive may discipline, on the same grounds mentioned in subsection (1)—
  1. (a)
    a public service employee under section 187A; or
  1. (b)
    a former public service employee under section 188A.
  1. (4)
    In this section—

misconduct means—

  1. (a)
    inappropriate or improper conduct in an official capacity; or
  1. (b)
    inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

Example of misconduct—

victimising another public service employee in the course of the other employee’s employment in the public service

responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.

  1. [28]
    Apart from the definition of misconduct in s 187(4) and the given example of misconduct, the PS Act does not go on to provide any guidance as to what is meant by 'inappropriate' or 'improper' conduct.
  1. [29]
    The Commission has held, in matters involving the predecessor provision to s 187(4) of the PS Act (s 87(2) of the Public Service Act 1996) that without attempting to exhaustively define 'misconduct', it involves something more than mere negligence, error of judgement or innocent mistake.[29] A similar view was expressed in respect of identical provisions to s 187(4) of the PS Act, as contained in s 18A of the Ambulance Service Act 1991.[30]
  1. [30]
    In Mathieu v Higgins ('Mathieu'),[31] Daubney J gave consideration to s 10(a) of the Queensland Ambulance Service Disciplinary Policy ('the QAS Policy') which specifically defined 'misconduct' in the context of 'unacceptable workplace behaviour' as defined in s 9 of the QAS Policy. The word 'misconduct' was defined as 'disgraceful or improper conduct in an official capacity.'
  1. [31]
    Justice Daubney thought the observations of Kirby P in Pillai v Messiter (No 2)[32] were instructive in construing the word 'misconduct' as in s 10(a) of the QAS Policy. In Pillai v Messiter (No 2), Kirby P, in addressing the meaning of the expression 'misconduct in a professional respect' in the Medical Practitioners Act 1938, said:

But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession.  Something more is required. It includes a deliberate departure from accepted standards for such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.[33]

  1. [32]
    Justice Daubney held that the observations of Kirby P in Pillai v Messiter (No 2) assisted in the construction of 'misconduct' in the QAS Policy because:
  • the words 'disgraceful' and 'improper', while included in the definition in s 10(a) as alternatives, should not be regarded as wholly independent and each term should be read as giving colour to the other; and
  • the definition must be read in context in that 'misconduct' was listed as one form of 'unacceptable workplace behaviour' and which was expressly separated from other forms of sub-optimal workplace behaviour such as 'carelessness, incompetence or inefficiency.'[34]
  1. [33]
    Justice Daubney went on to conclude:

[26]  These two considerations compel the conclusion that ‘misconduct,’ as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct. As the policy stands, ‘misconduct,’ to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.[35]

  1. [34]
    Section 187(4)(a) of the PS Act relevantly defines 'misconduct' as 'inappropriate or improper conduct in an official capacity.'  Section 187(1)(a) refers to the relevant employee performing '… the employee's duties carelessly, incompetently or inefficiently' as another disciplinary ground.
  1. [35]
    Because a public service employee's careless, incompetent or inefficient conduct is a separate disciplinary ground under s 187 of the PS Act, then the meaning of 'misconduct', as analysed by Daubney J in Mathieu, is of assistance in construing s 187(4) of the PS Act.
  1. [36]
    In my view, inappropriate or improper conduct in an official capacity involves something more than mere negligence, error of judgement or innocent mistake and includes a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by an employee to whom s 187 of the PS Act applies.

The Code

  1. [37]
    Clause 1.5 of the Code is headed 'Demonstrate a high standard of workplace behaviour and personal conduct' and states:

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

We will:

  1. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own
  2. ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment
  3. ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients
  4. ensure our private conduct maintains the integrity of the public service and our ability to perform our duties, and
  5. comply with legislative and/or policy obligations to report employee criminal charges and convictions.

The Industrial Relations Act 2016

  1. [38]
    Section 316 of the Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable.
  1. [39]
    A dismissal may be unjust in circumstances where the employee was not guilty of misconduct upon which the employer acted.  Similarly, a dismissal may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer.  Alternatively, a dismissal may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[36]
  1. [40]
    In many cases, the concepts of harshness, unjustness or unreasonableness will overlap.[37]
  1. [41]
    Section 320 of the Act relevantly provides that in deciding whether a dismissal was harsh, unjust or unreasonable, the Commission must consider:
  • whether the employee was notified of the reason for dismissal;
  • whether the dismissal related to the employee's conduct, capacity or performance;
  • if the dismissal related to the employee's conduct, capacity or performance, whether the employee had been warned about the conduct, capacity or performance or whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
  • any other matters the Commission considers relevant.
  1. [42]
    In an unfair dismissal case, an applicant carries the onus of proving that the dismissal was harsh, unjust or unreasonable.[38]
  1. [43]
    In applications by dismissed employees under ch 8, pt 2 of the Act, following the employee being dismissed after a disciplinary process under the PS Act where the relevant chief executive or delegate has to be reasonably satisfied the employee has been guilty of misconduct, the onus of proof falls upon the respondent to establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct as alleged.[39] 
  1. [44]
    Whether the misconduct occurred is to be decided on the balance of probabilities; and the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding.[40] This consideration invokes the principle in Briginshaw v Briginshaw ('Briginshaw').[41] That principle does not go to the standard of proof but to the standard of evidence, such that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[42]
  1. [45]
    Whether or not the Commission can be satisfied the misconduct occurred is a separate consideration to whether the dismissal was harsh, unjust or unreasonable within the meaning of the Act and whether the former employee is entitled to a remedy under the Act.[43] However, if it is determined that an employee's dismissal was not authorised by the PS Act, that may lead to a conclusion that the dismissal was 'unjust' within the meaning of the Act.[44]
  1. [46]
    In unfair dismissal cases involving findings of misconduct under the predecessor to the PS Act, these principles have led to the following approach being taken by the Commission, namely, in respect of each allegation of misconduct, the Commission is to determine:
  • whether in fact each allegation has been substantiated on the balance of probabilities;
  • whether the explanation provided by the employee is accepted;
  • whether those facts are established to the Briginshaw standard of evidence; and
  • if so, whether the allegations which are substantiated meet the test of the definition of misconduct in the PS Act.[45]

Did Mr Lam engage in the conduct the subject of the four allegations and, if so, did he engage in misconduct as alleged in the first three allegations and did he contravene the Code as alleged in the fourth allegation?

  1. [47]
    In cross-examination, Mr Lam agreed that his position as a PSO involved him having to deal with some of the most vulnerable patients that attend the Hospital, including those with brain injuries and those with addiction issues.[46] 
  1. [48]
    Mr Lam also agreed that he had received and undertaken occupational violence training and refresher training.[47] Mr Lam also seemed to agree that in circumstances where there can be many PSOs involved in dealing with a particular person, a PSO had to use force that was sufficient to ensure the patient complied with the direction given to the patient.[48]

Allegation one

The allegation and its particulars

  1. [49]
    This allegation was that on 8 February 2018, at approximately 10.22 pm, Mr Lam used inappropriate force towards Patient UR 628423 during a 'code black' emergency response (Security Incident SIS028064).
  1. [50]
    The particulars included:
  • on 8 February 2018, a 'code black' duress alarm was activated in the Medical Assessment Unit at the Hospital;
  • Mr Lam and three Protective Services team members responded to the incident at approximately 10.22 pm;
  • the patient in bed 26 was behaving aggressively towards nurses and was physically restrained by the PSOs during the emergency response;
  • after the incident, concerns were raised about Mr Lam's actions during physical restraint of the patient, namely, that his actions towards the patient may not have been appropriate and, following the Matters Assessment Committee ('MAC') determining that the matter, if proven, would be considered corrupt conduct, an external investigator was appointed to investigate the allegations;
  • the incident was captured on body worn cameras worn by Mr Lam and PSO Bradley Boyle, the footage of which showed, amongst other things:
  1. the patient becoming aggressive and there being two distinct engagements with the patient observed in the footage involving Mr Lam and others within the timeframe of approximately two minutes;
  2. in both engagements, Mr Lam positioned himself so that he was near the patient's head at the head of the bed;
  3. in the first hold, Mr Lam appeared not to exert pressure on the patient but was clearly holding the patient's head by using two hands, his fingers were placed under the patient's jaw and this was maintained for approximately half a minute;
  4. in the second hold, Mr Lam appeared to exert pressure on the patient's cheek by using his right thumb and holding the patient's head using two hands and his fingers were also placed under the jaw and this second hold was maintained for approximately one minute;
  5. at the time Mr Lam used this hold, the patient was in a prone position on the bed and was restrained by three PSOs and a male nurse and although the others in attendance released the pressure from their respective holds, Mr Lam did not and continued the hold; and
  6. the patient appeared distressed and in pain during both engagements but markedly so in the second engagement; and
  • the investigator concluded that Mr Lam did not provide her with a 'viable rationale' for his actions which might persuade others to believe that the force he used in the second engagement was reasonable and proportionate.[49]

The evidence

  1. [51]
    Mr Lam's evidence-in-chief about this allegation was that because of his previous dealings with this patient, he was aware that the patient had a brain injury.[50]  Mr Lam stated that the patient appeared to become aggravated and attempted to get up from the bed when Protective Services Supervisor ('PSS') Jason Spencer pushed the patient in the chest which escalated the situation and required the involvement of the other PSOs.[51]  Mr Lam then stated that he told the patient to 'settle down' and reached for the patient's chin/neck area so he could restrain the patient's head.[52] Mr Lam further stated that PSS Spencer was also telling the patient to settle down but PSS Spencer was twisting the patient's wrist which appeared to escalate the situation further and that the patient was in pain due to PSS Spencer twisting the patient's wrist ('the first restraint').[53]
  1. [52]
    Following that, Mr Lam and the other PSOs released the patient.  Mr Lam stated that he did not believe he used any inappropriate force in that instance.[54]
  1. [53]
    Mr Lam stated that the patient appeared to calm down after the PSOs released him, but the patient then got aggravated once more and attempted to get out of his bed for a second time, the PSOs attempted to restrain him once again, the situation was very volatile and PSO Bradley Boyle attempted to hold the patient's forehead down which was not successful.[55] 
  1. [54]
    Mr Lam then stated:
  • he then placed his fingers under the patient's jawline and his thumb on the patient's cheek in an attempt to control the patient's head as he did in the first restraint, however, he was not applying any pressure to the patient's cheek;
  • he did not have the opportunity to remove his thumb as he thought that would loosen his restraint of the patient's head and potentially allow the patient to injure himself or one of the PSOs, and that any attempt by him to pull himself away or readjust could have set off another reaction from the patient which was demonstrated when PSS Spencer loosened his grip on the patient's arm and the patient began flailing his arm; and
  • the patient had not given any indication verbally that he would calm down so he did not loosen his restraint.[56]
  1. [55]
    Mr Lam maintained that he was not applying any pressure to the patient's cheek, he was not causing the patient any pain and that if he was causing any pain to the patient, the patient would have been verbalising it to him as the patient did to PSS Spencer in the first restraint.[57]
  1. [56]
    The Commission was played the body worn camera footage from Mr Lam and from PSO Boyle who were both present at the time of the incident subject of Allegation one.
  1. [57]
    PSO Boyle's body worn camera footage depicts:
  • the male patient lying in bed in his room with other PSOs and other employees of the Health Service present;[58]
  • the patient is conversing with a nurse who is suggesting that the patient goes to sleep;[59]
  • the patient then gets up off the bed, stands up and moves towards a nurse, is pushed back down onto the bed by one of the PSOs, stands up again and begins to act aggressively by striking out with his hands at one of the PSOs;[60]
  • the patient is then, in a supine position on the bed, restrained by three PSOs, with two PSOs restraining the patient's arms and the other restraining the patient's legs;[61]
  • Mr Lam, who is on the left-hand side of the bed and behind the patient's head, holds the patient's head by:
  1. placing his left hand on the left side of the patient's face;
  2. placing his fingers under the left side of the patient's jaw;
  3. placing his right hand on the right side of the patient's face; and
  4. placing his right fingers under the right side of the patient's jaw ('the first hold'); and

it does not appear Mr Lam's thumbs come in forceful contact with the patient's face and during that time it appears that another PSO is twisting the patient's left wrist;[62]

  • the patient then becomes calm and the PSOs (including Mr Lam) release their hold, except for one PSO who continues to twist the patient's left wrist;[63]
  • the patient then gets out of the bed again, becomes aggressive and is again restrained, in a supine position on the bed, by the PSOs and another employee by restraining his arms and legs;[64]
  • Mr Lam, again from a position behind the patient's head, holds the patient's head by placing his left hand on the left side of the patient's face and his left fingers under the left side of the patient's jaw and placing his right fingers under the right side of the patient's jaw while deeply pressing his right thumb into the patient's right cheek ('the second hold') and at the same time another PSO holds the patient's left wrist;[65]
  • Mr Lam talking to the patient, maintaining his hold on the patient's head as described immediately above, when the patient appears to slightly calm down, the other PSOs and other employee do not maintain the same strong hold they had on the patient, while Mr Lam maintains his hold on the patient's head as described immediately above;[66]
  • the patient then becomes aggressive again, the PSOs and the other employee more forcefully restrain the patient and Mr Lam, while talking to the patient and telling him to calm down, maintains his hold on the patient's head as described immediately above, while the PSO holding the patient's left hand, twists the patient's left wrist;[67] and
  • the patient then calms down and is released by all PSOs, Mr Lam also releases his hold and those present then converse with the patient while the patient calms down and is then sedated.[68]
  1. [58]
    In cross-examination, Mr Lam said that:
  • he believed he used appropriate force;[69]
  • holding the patient's head was part of his training;[70]
  • in respect of his first hold, when the patient became aggressive for the first time, the patient was complaining about pain from his wrist but never said that he (Mr Lam) was hurting the patient;[71]
  • in respect of his second hold:
  1. when the patient became aggressive for the second time, his thumb was there accidentally because it slipped and there was no pressure applied by him to the patient;[72]
  2. he was not applying any pressure;[73] and
  3. he did not use a mandibular hypoglossal hold;[74]
  • while it was possible the patient had been restrained by the three PSOs and the other employee present, he maintained his hold because the patient was not being compliant, the patient's head was not in control and the patient could get up, headbutt, spit and bite;[75]
  • he knew the patient had a brain injury but was not sure whether compliance holds were suitable for patients with brain injuries but, in any event, he did not put pressure on the patient and the patient was not complaining to him about causing the patient any pain;[76] and
  • he denied purposefully imposing pain on the patient.[77]
  1. [59]
    Mr Jackson's evidence was that he found it deeply concerning that Mr Lam was aware of the patient's brain injury, but still applied a pain compliance technique during the course of the restraint.  Mr Jackson stated that patients with brain injuries do not typically respond well to pain compliance techniques as they are unable to comprehend why they are being subjected to a pain compliance hold and are more likely to perceive such techniques as an attack.  Mr Jackson further stated that Mr Lam should have been aware of that from his experience and training.[78] 
  1. [60]
    Mr Jackson also stated that PSOs are taught that the aim of pain compliance techniques is to apply pain quickly and then release in order to assess compliance with verbal directions given at the same time, and if applied continuously, the patient usually escalates in response to the continuing pain; and adrenaline can also cause the patient to become more immune to pain compliance after extended periods, making the technique wholly ineffective.[79]
  2. [61]
    Mr Jackson's further evidence was that:
  • the appropriate way to restrain a patient's head is to hold the forehead down to prevent head movement or, alternatively, push the side of the patient's head down onto a mattress and hold it there and that PSOs are specifically taught to avoid the chin and neck area during head restraints as it may increase the risk of being bitten by the patient or induce a panic response in the patient;[80]
  • if Mr Lam was generally concerned about the patient moving his head, he could have adjusted his hold at any time to a proper head restraint technique by repositioning his thumb alongside the patient's jawline, placing his hands on the patient's forehead and turning the patient's head gently towards the mattress;[81]and
  • there was no need for the continued use of the hypoglossal pain compliance hold.[82]
  1. [62]
    Mr Jackson's evidence, from his viewing of the body worn camera footage, was that:
  • Mr Lam's first hold of the patient involved applying pressure to the hypoglossal nerve motor point area with his fingers which would undoubtedly cause the patient pain and that while it was not possible to rule out pain being caused by the wrist hold on the patient (imposed by PSS Spencer), when PSS Spencer released the patient's wrist, Mr Lam continued to dig his fingers in the patient's cheek and neck area and the only source of pain was from Mr Lam's hold and that the pain on the patient's face was clearly visible at that point;[83]
  • he did not agree with Mr Lam's assertion that he did not apply any pressure to the patient's cheek because on the body worn camera footage at 4.51, it was clearly visible that Mr Lam is applying pressure both to the patient's cheek area and under the chin and despite the patient appearing visibly relaxed, Mr Lam did not release the patient or adjust his hold; and that 10 seconds later when the patient escalated again, the technique appeared to be applied with greater force to the cheek and under the chin and that when the patient's head was forcibly pulled upwards by Mr Lam, it could be seen that the patient's eyes rolled back and that he grimaced with pain;[84] and
  • Mr Lam finally released his hold at 5.46 of the body worn camera footage, meaning the patient was locked in the pain compliance technique for a full minute which was not an appropriate use of a pain compliance technique.[85]
  1. [63]
    In cross-examination, Mr Jackson agreed that, in respect Mr Lam's first hold on the patient, PSO Boyle was not successful in restraining the patient's head and agreed, in that circumstance, that Mr Lam should have taken hold of the patient's head.[86]
  1. [64]
    However, Mr Jackson stated that the way Mr Lam controlled the patient's head was not the way Mr Lam was taught to restrain a patient's head.[87] 
  1. [65]
    Mr Jackson also stated that while PSS Spencer applied a wrist lock and then released it, from what he saw in the video, Mr Lam continued to apply pressure to the patient's head and then the patient re-escalated.[88]

The AWU's submissions

  1. [66]
    The AWU submitted that Mr Lam's evidence about Allegation one presented an entirely reasonable version of events and that Mr Lam clearly explained his rationale for why he conducted himself in the way that he did.[89]

The Health Service's submissions

  1. [67]
    The Health Service submitted that Mr Lam's use of a compliance hold on a patient with a brain injury, while the patient was already adequately restrained, and sustaining that hold, escalated the patient's behaviour which was an inappropriate and unnecessary use of force for which there was no reasonable explanation or justification.[90]

My determination

  1. [68]
    Mr Jackson as the Workplace Health and Safety Education Manager for the Health Service,[91] is primarily responsible for planning and facilitating education for employees in workplace health and safety which includes occupational violence training and occupational violence prevention refresher training.[92] Mr Jackson has delivered training in aggressive behaviour management and occupational violence prevention modules since 2004.[93]
  1. [69]
    I accept that Mr Jackson is an expert in occupational violence prevention and training. I have no reason to doubt his opinions as to the restraint techniques that have been used by Mr Lam in relation to Allegation one.
  1. [70]
    I cannot accept Mr Lam's submissions about Allegation one.  There are a number of reasons for this.
  1. [71]
    First, on Mr Jackson's evidence, Mr Lam did not use an appropriate technique to restrain the patient's head by putting pressure on the patient's hypoglossal nerve motor point with his fingers and that he should have held the patient's forehead down to prevent head movement or push the patient's head down onto the mattress and hold it there.
  1. [72]
    Secondly, it is clear to me, from reviewing the body worn camera footage, that in the first hold and in the second hold, Mr Lam was applying significant pressure with his fingers to the patient's hypoglossal nerve motor point and in the second hold, in addition, he was applying significant pressure with his thumb to the patient's right cheek.  Whilst it does appear to me that the patient was experiencing pain from the wrist twist to his left wrist imposed by another PSO, it is also clear that the patient was experiencing pain from the first and second holds being undertaken by Mr Lam.
  1. [73]
    Thirdly, I do not accept Mr Lam's evidence that, in respect of the second hold, his thumb slipped and was accidentally placed into the patient's right cheek.  From my viewing of the body worn camera footage, this was deliberate and could not have been accidental because it was not fleeting. Further, Mr Lam's thumb was pressed into the patient's right cheek, for approximately one minute[94] and was pressed with considerable force as was evident from the indentation on the patient's cheek caused by the placement of Mr Lam's thumb.
  1. [74]
    Fourthly, in respect of the second hold, when the other PSOs temporarily relaxed their restraint on the patient's arms and legs after the patient initially calmed down, Mr Lam continued with his hold on the patient's head until the patient became aggressive again.
  1. [75]
    On the evidence from the body worn camera footage of PSO Boyle and from Mr Jackson's evidence, I find that the allegation has been substantiated on the balance of probabilities.  The evidence from the body worn camera footage of PSO Boyle clearly proves Mr Lam's conduct on the balance of probabilities.
  1. [76]
    For the reasons given above, I do not accept Mr Lam's explanation of his conduct in respect of Allegation one.
  1. [77]
    Finally, I cannot conclude that Mr Lam's conduct was mere negligence, an error of judgement or an innocent mistake.  It appears to me that Mr Lam's conduct, on the two occasions he held the head of the patient, the subject of this allegation, was deliberate. 
  1. [78]
    In my view, Mr Lam engaged in inappropriate conduct in an official capacity and, specifically, his conduct was a deliberate departure from the accepted standards required by the Health Service in respect of use of force.  The way Mr Lam applied that force was inconsistent with his training and what was required by the Health Service. 
  2. [79]
    Mr Lam engaged in misconduct within the meaning of s 187(1)(b) of the PS Act in that he engaged in inappropriate conduct in an official capacity when he used inappropriate force towards the patient.

Allegation two

The allegation and its particulars

  1. [80]
    This allegation was that on 18 March 2018, at approximately 2.45 pm, Mr Lam used inappropriate force towards Patient UR1170587 during a 'code black' emergency response (Security Incident SIS029567).
  2. [81]
    The particulars included:
  • on 18 March 2018, Protective Services staff were contacted in the office by staff from the Emergency Department advising of an incident in Triage;
  • Protective Services staff responded to the 'code black' security incident;
  • Mr Lam and six other Protective Services team members responded to the incident at approximately 10.22 pm and that when Mr Lam arrived on the scene, the patient was in an agitated state, was conversing with the nursing team and was concerned about his clothes which had been removed and destroyed prior to Mr Lam's arrival;
  • after an unsuccessful attempt to negotiate with the patient to return to bed, the treating team decided that the patient was to be removed from the Hospital and the patient was escorted from the Hospital by Protective Services staff;
  • video footage of the incident was captured including footage from the body worn cameras worn by Mr Lam and the other PSOs present, which showed, amongst other things:
  1. the first engagement with PSOs occurred after the patient refused to leave the Hospital after receiving a direction from the PSOs;
  2. the patient was physically restrained by two PSOs, one either side who held the patient's arm and the PSS applied a pain compliance technique facing the patient, who then agreed to comply with the request and started walking outside;
  3. as the patient was escorted out by the two PSOs, with the PSS leading the way and Mr Lam and another PSO walking behind the patient, the other PSO at times applied pressure to the patient's neck or placed a hand against the patient's back, Mr Lam held the patient's jeans around the waist and due to Mr Lam's small stature, he appeared at times to be between the patient and the PSO;
  4. outside the Hospital entrance, the PSS stopped the procession so that he and the nurse could speak with the patient, the patient wanted the PSOs to release him, the other PSO placed his right hand on the patient's neck to make him face the PSS and the patient told the PSO not to push his head, at which time Mr Lam reached up to the patient's neck, which was held by the other PSO at that time;
  5. the patient was clearly agitated by the other PSO pushing his head and almost turned completely to tell him this;
  6. Mr Lam then reached up and put his hand between the PSO's hand and the patient's neck/jaw area in front of the patient's ear and that it appeared from the footage that Mr Lam was trying to put his thumb into that area;
  7. while the nurse was trying to explain to the patient where his clothes were, the patient turned and looked at Mr Lam and told Mr Lam to stop giving him a wedgie, Mr Lam responded by telling him to 'Just listen to the nurse', and when the patient told Mr Lam to 'shut the fuck up', Mr Lam reached up again to the patient's neck under the hairline with his left hand;
  8. Mr Lam continued, for 10 seconds, to try to get hold of the patient's neck without success (due to his short stature) despite the PSS and the patient telling Mr Lam to stop;
  9. the PSS directed Mr Lam to stop the action and eventually Mr Lam stopped, retaining hold of the patient's jeans; and
  10. when the patient settled, the PSS walked up to Mr Lam and told him to step back, which Mr Lam did;
  • following the incident, a complaint was made to the Manager Protective Services regarding Mr Lam's actions, specifically, that Mr Lam used a 'flying mandibular angle and mastoid pain compliance for an aggressive patient that is under restraint' and that Mr Lam did not follow the direction given by his supervisor to stop what he was doing;
  • the matter was referred to the MAC which determine the matter, if proven, would be corrupt conduct and returned the matter to the Health Service to manage;
  • an external investigator was appointed to investigate the allegations and, in his interview, Mr Lam advised Ms Scovell:
  1. 'it was usual when the patient was refusing to walk to hold their pants from behind and drive them' and further that Mr Lam considered if he let go of the patient's pants, the patient may have kicked someone;
  2. he pushed the patient's head to try and turn it towards the clinicians who were addressing him, and to protect PSO Sam Glassie, who the patient seemed to be focusing on;
  3. he denied he exerted any pressure on the patient, and stated he would be unable to do so due to the patient's height;
  4. he stepped back when he was asked by the supervisor and that he was not asked to leave the situation and was present when the police arrived;
  5. he was unhappy his name was used by the PSS during the incident, as the patient kept referring to 'Eric' while focusing on the other PSO; and
  6. he may have 'tried' to use pressure point techniques but he did not use any;
  • the mandibular angle pressure point technique Mr Lam attempted to use on the patient has the effect of submission and cessation of intentional motor activity, causes medium to high pain intensity and that the technique should be used when the patient is displaying passive resistance, such as grabbing a rail or linking; and
  • the patient did not appear to be displaying passive resistance when Mr Lam attempted to use that technique.[95]
  1. [82]
    Mr Lam's evidence-in-chief was that he and six other PSOs attended the 'code black', that the patient was acting aggressively so employees of the Health Service decided that the patient had to be removed from the Hospital and that some of the PSOs restrained the patient and began escorting him from the Hospital.[96] 
  1. [83]
    Mr Lam stated that he was walking behind the patient and was holding the patient's jeans by the belt loop to ensure the patient was moving out of the Hospital as he appeared to be resisting the move and that when they were outside of the Hospital, PSS Spencer attempted to move the patient's head forward so he could talk to him but that the patient would not look forward to hear PSS Spencer's instructions.[97]
  1. [84]
    Mr Lam then stated that:
  • he and PSO Glassie then attempted to turn the patient's head forward to comply and listen to PSS Spencer, PSO Glassie touched the patient's neck first to attempt to turn the patient's head forward, but the patient attempted to turn around further to face PSO Glassie;
  • he then attempted to turn the patient's head forward with his free hand as he was still holding onto the back of the patient's jeans and that he was stretching out to reach the patient's face;
  • due to his height, it was unlikely that he was able to apply any pressure to the patient's face and he believed that because he was shorter than the patient, it appeared as though he was attempting to apply a pressure point technique when he was merely trying to push the patient's head forward;
  • the patient was being extremely aggressive and threatening to all PSOs and Mr Lam was concerned that the patient may spit on him and other PSOs because he had been previously spat on during his employment and was required to undergo 12 months of medical testing to ensure he was not affected by any illness;
  • PSO Glassie was holding the patient's neck, the patient could not turn around fully and that the patient was almost directly facing him;
  • throughout the incident, he was trying to avoid the patient spitting on him and he was also trying to ensure the patient looked at PSS Spencer and also listened to the nurse who was trying to communicate with the patient;
  • the patient appeared to become confused after PSS Spencer used his name and continued to refer to 'Eric' even though he (Mr Lam) had stepped away from the patient and that PSS Spencer instructed him to step away from the patient so that the patient would not target him (Mr Lam);
  • while PSS Spencer did make a note in the incident report that he believed he (Mr Lam) was attempting to use pressure points, PSS Spencer did not give him (Mr Lam) a debrief of the incident about any concern he may have had about Mr Lam's conduct or the force that he had used; and
  • none of his colleagues, who were present at the code black raised concerns with him about his conduct or the force he used.[98]
  1. [85]
    The body worn camera footage from PSO Johnston[99] and PSO Glassie[100] depicts:
  • a bearded male patient, wearing long trousers with no shirt with Health Service employees around him including four PSOs, one of whom is Mr Lam, and the patient is walking around, is agitated and appears to be asking for his clothes;[101]
  • the patient then comes face to face, aggressively, with a PSO, and the PSO pushes the patient away with his hands;[102]
  • the patient is then restrained by four PSOs who then proceed to physically manoeuvre the patient towards the exit door of the Hospital, Mr Lam is one of the PSOs and is grabbing onto the back of the patient's trousers at the waistline;[103]
  • PSO Glassie is behind the patient to the left and places his right hand on the left side of the patient's shoulder near the back of the neck, and the patient is then taken out of the Hospital, past the Ambulance Bay to a car park area, and PSS Spencer walks around to face the patient and asks the patient to listen to him;[104]
  • PSO Glassie is still behind the patient, grabs the back of the patients neck with his right hand so that the patient faces PSS Spencer;[105]
  • Mr Lam then, momentarily, with some force, places his left hand on the right side of the patient's head and places his thumb under the right side jaw of the patient and his fingers around the patient's right ear and tells the patient to 'listen' ('the first contact');[106]
  • the patient turns around and looks at PSO Glassie and asks if he has a problem, at which point Mr Lam reaches up with his left hand and seems to have his thumb near the right side of the patient's jaw with his fingers on the right side of the patient's head pushing the patient's face forward ('the second contact');[107]
  • a female nurse arrives on the scene, speaks to the patient, the patient complains about being given a 'wedgie' and tells Mr Lam to '… shut the fuck up cunt';[108]
  • then Mr Lam with his left hand reaches up to the right side of the patient's head and presses his thumb into the area where the jaw meets the neck and places his fingers at the back of the patient's head to which the patient objects and when this occurs, PSS Spencer reaches up with his right hand to where Mr Lam's left hand is and says 'Eric, Eric, Eric stop please' at which point Mr Lam moves his right hand away from the back of the patient's head ('the third contact').[109]
  1. [86]
    In cross-examination, Mr Lam agreed that he held the patient's jeans around the waist. Mr Lam also agreed that holding the patient by the pants was not an approved method of escorting a patient.[110]
  1. [87]
    It was also suggested to Mr Lam, that PSO Johnston's body worn camera footage:
  • showed him putting his hand between PSO Glassie's hand and the patient's neck/jaw area in front of his ear to which Mr Lam:
  1. responded by stating that he could not reach that far to put pressure on the patient's jaw and that he was trying to get the patient to face the person that was talking to him;
  2. conceded that it did appear he was putting his hand between another PSO's hand and the patient's neck/jaw area in front of his ear; and
  3. denied that that was a compliance hold and denied it was a flying mandibular angle and mastoid pain compliance hold;[111] and
  • showed that Mr Lam attempted to continue to get hold of the patient's neck area for a further 10 seconds despite the patient telling him to stop in response to which Mr Lam stated that he was trying to push the patient's head to face the person who was talking to him and that he could not put any pressure on the patient because he could not reach that far and that he was not using a pain compliance hold.[112]
  1. [88]
    In further cross-examination:
  • Mr Lam stated that the patient was telling PSO Glassie to stop touching the back of his head and was not directing that to him (Mr Lam) because it was PSO Glassie that was putting pressure on the back of the patient's neck;[113]
  • it was also suggested to Mr Lam that during the investigation he told the investigator he may have been trying to use a pressure point technique but that he did not use it, however, Mr Lam said he could not recall stating that;[114] and
  • Mr Lam stated that he was not trying to use a pressure point technique and that he would not be able to as the patient was a foot taller than him.[115]
  1. [89]
    Mr Lam did agree that PSS Spencer directed him to stop but Mr Lam said that was in respect of his attempt to push the patient's face forward because PSS Spencer was trying to get the patient's attention.[116]
  1. [90]
    Mr Lam denied that he used a pressure hold when it was not needed and denied that his actions exacerbated the situation.[117]  Furthermore, when it was suggested to Mr Lam that PSS Spencer debriefed him and said that his actions placed all PSOs involved at risk, Mr Lam said he did not recall any such debrief.[118]
  1. [91]
    Mr Jackson's evidence-in-chief was that:
  • at 1.57 on PSO Glassie's body worn camera footage, PSO Glassie holds the patient's neck and Mr Lam then reaches up to apply the mandibular angle pain compliance technique and that he could not discern any reason for the use of that technique as the patient already had both arms restrained by other PSOs;[119]
  • the body worn camera footage shows that Mr Lam was not targeting the patient's face, and that he was clearly applying the mandibular angle technique which involves applying pressure to the area behind the patient's earlobe to elicit a pain response;[120]
  • Mr Lam's use of that technique can clearly be observed at 1.57, 2.15 and 2.34 of PSO Glassie's body worn camera footage in that that footage depicts Mr Lam's fingers extended up to the side of the patient's head and his thumb being used to apply pressure behind the patient's earlobe, consistent with the mandibular angle technique;[121]
  • Mr Lam's justifications for his use of the mandibular angle technique, namely, that he was trying to avoid the patient spitting on him, was not plausible because if Mr Lam was concerned about the risk of spitting, the appropriate response would be to bend the patient's head forward towards the ground and that there was no audio, in the body worn camera footage, of anyone raising concerns about spitting;[122]
  • if pain or force was applied to a patient's neck area or from behind, the patient will instinctively turn to face the source of the pain and by continuing to apply pain to the patient's neck area from behind, Mr Lam was promoting the patient to turn around and face him;[123] and
  • there was no reason for Mr Lam to remain behind the patient because he was not contributing to the three man restraint in any way and could have removed himself from the situation if he was concerned about the risk of spitting.[124]

The AWU's submissions

  1. [92]
    Again, the AWU submitted that Mr Lam's evidence about this allegation presented an entirely reasonable version of events and that Mr Lam clearly explained his rationale for why he conducted himself in the way that he did.[125]

The Health Service's submissions

  1. [93]
    The Health Service submitted that:
  • Mr Lam accepted that:
  1. holding a patient by the pants to force them to walk when they refuse to walk is not an approved method;
  2. he was reaching up to the patient's neck as he was 'trying to get his attention to listen to the person that was talking to him' and to 'face the person that was talking to him';
  3. it would appear that he put his hand between another PSO's hand and the patient's neck/jaw area in front of the patient's ear; and
  4. PSS Spencer directed him to stop but that the direction was to stop trying to get the patient's attention, rather than in relation to the use of pressure points;
  • Mr Lam denied that:
  1. he applied any pressure as he could not reach that far due to his short stature;
  2. he used or attempted to use a compliance hold while the patient was already restrained;
  3. his actions escalated the situation and instead it was the actions of another PSO that escalated the situation;
  4. the patient told him to stop after he continued to jump up to get a hold of the patient's neck for a further 10 seconds, but that that instruction was directed at another PSO; and
  • PSS Spencer directed Mr Lam to stop using pressure points during the incident which was recorded in the Security Incidents Details report dated 19 March 2018 (SIS029567); and
  • the body worn camera footage is clear in that the patient was aggravated with Mr Lam not PSO Glassie, Mr Lam used a compliance hold while the patient was already restrained and Mr Lam's actions caused the patient's behaviour to escalate such that Mr Lam's actions constituted an incident of inappropriate and unnecessary use of force.[126]

My determination

  1. [94]
    I do not accept Mr Lam's explanations in respect of this allegation.  There are a number of reasons for this.
  1. [95]
    First, if Mr Lam was concerned about the patient spitting on him, then the first, second and third contact, as depicted on the body worn camera footage, was not action that would have prevented him from being spat on.  Indeed, from Mr Lam's contemporaneous comments in respect of the first, second and third contact, his reasons for the contact appeared to be attempting to get the patient to face and to listen to PSS Spencer and the nurse.
  1. [96]
    Secondly, I accept Mr Jackson's evidence that Mr Lam was applying a pain compliance technique, which Mr Jackson refers to as the 'mandibular angle pain compliance technique'.  This is because, on my viewing of the body worn camera footage, Mr Lam was not using a flat hand when his left hand came in contact with the right side of the patient's face but was placing his thumb under the patient's jaw near where it met the patient's neck, near the back of the head and he had his fingers curled and placed on the side and back of the patient's head.  That is to say, from what I saw on the body worn camera footage, the contact by Mr Lam with the patient's head seemed to be consistent with Mr Jackson's description of the mandibular angle pain compliance technique and he was not using his hand, being placed flat on the patient's face, to try to push the patient's face forward away from him.
  1. [97]
    Thirdly, it is clear to me that Mr Lam's contact with the patient, in the way Mr Lam's left hand came in contact with the right side of the patient's face, was causing the patient to become more agitated to the point that PSS Spencer directed Mr Lam to stop his physical action of holding the back of the patient's neck.
  1. [98]
    Fourthly, I accept Mr Jackson's evidence that when the patient was outside of the Hospital in the car park area, because the patient was being restrained, on either side, by other PSOs, there was no need for Mr Lam to apply any compliance technique.  Even without Mr Jackson's evidence, from my viewing of the body worn camera footage, there did not appear to me to be any reason for Mr Lam's contact with the patient.  There is no audio or video evidence that the patient was threatening or appeared to be about to spit on Mr Lam or any other person present.
  1. [99]
    Finally, although it did not appear to be the main point pressed by the Health Service, Mr Lam's method of holding onto the back of the patient's jeans to assist in escorting the patient from the Hospital, was not an approved method.
  1. [100]
    Again, I cannot conclude that Mr Lam's conduct in respect of the use of his left hand, on the three times he came in contact with the right side of the patient's head, was mere negligence, an error of judgement or an innocent mistake.  It appears to me that Mr Lam's conduct, in respect of his contact by his left hand, with the patient's head, was deliberate.
  1. [101]
    For the reasons given above, I do not accept Mr Lam's explanation of his conduct in respect of Allegation two.
  1. [102]
    In my view, the body worn camera footage together with Mr Jackson's evidence, proves on the balance of probabilities that Mr Lam engaged in inappropriate conduct in an official capacity and, specifically, his conduct was a deliberate departure from the accepted standards required by the Health Service in respect of use of force.  The way Mr Lam applied that force was inconsistent with his training and what was required by the Health Service. 
  1. [103]
    Mr Lam engaged in misconduct within the meaning of s 187(1)(b) of the PS Act in that he engaged in inappropriate conduct in an official capacity when he used inappropriate force towards the patient.

Allegation three

The allegation and its particulars

  1. [104]
    This allegation was that on 21 March 2018, at approximately 11.05 pm, Mr Lam used inappropriate force towards Patient UR 1159140 during a 'code black' emergency response (Security Incident SIS029709).
  1. [105]
    The particulars included:
  • on 21 March 2018, Mr Lam and four PSOs responded to a disturbance in the Emergency Department Resuscitation area and the code was in response to aggressive and abusive behaviour by a patient;
  • the patient was abusive towards staff and was causing a disturbance for others in the vicinity as he was shouting and swearing, and when the patient moved aggressively towards the treating doctor, one of the PSOs stepped between the doctor and the patient and pushed the patient away;
  • the PSO reported the patient became verbally aggressive and his body language was threatening;
  • due to the patient's aggression, a decision was made by the team to restrain the patient and return him to his bed and the PSO called a code black emergency response at the time;
  • the medical team determined the patient's behaviour was unacceptable and decided he was required to leave the Hospital and the patient was escorted to the exit by nurses and Protective Services staff and required a further restraint near the exit;
  • following the incident, concerns were raised verbally with the Manager Protective Services regarding Mr Lam's actions during the restraint of the patient during the escort from the Hospital, specifically the use of a mandibular pain compliance hold towards the patient when he was restrained against a wall by other PSOs;
  • the matter was referred to the MAC which determine the matter, if proven, would be considered as corrupt conduct and returned the matter to the Health Service to manage, and an external investigator was engaged to investigate the allegations;
  • video footage of the incident was captured and reviewed by the investigator, including footage from the body worn cameras worn by Mr Lam and two other PSOs. The footage showed:
  1. the patient was agitated and verbally abusive when the PSOs were requested to attend, and then the patient became physically threatening;
  2. after being directed to leave by the nursing staff, the patient started to voluntarily leave, he was redirected because he was heading in the wrong direction, became increasingly threatening and, as a result, two PSOs physically restrained him but Mr Lam was not part of that restraint;
  3. one PSO had the patient's left arm bent up against his back and the other had a hold of the patient's right wrist while he turned the patient's face away from him towards the wall using his flat hand;
  4. the PSO had already turned the patient's head by the time Mr Lam walked up from behind and applied the compliance hold;
  5. Mr Lam initially reached up between the PSO and the patient to the right of the patient's neck/jaw while saying 'Just keep walking' and then Mr Lam bought his left hand up saying, 'Did you understand that?';
  6. at that time, Mr Lam appeared to pull the patient back towards him while saying 'Just keep walking' while another PSO was in front of the patient and was saying to the patient 'You can leave mate';
  7. Mr Lam appeared to lose his grip as the patient was propelled forward by two PSOs; and
  8. Mr Lam then disengaged, and the patient continued out of the Hospital door escorted and physically restrained by two PSOs;
  • at interview, Mr Lam advised the investigator:
  1. the patient was restrained against the wall as he was resisting the PSOs during the escort;
  2. the patient turned towards PSS Lee Quinn and appeared as if he was going to spit on him;
  3. he used pain compliance on the patient to stop the patient from spitting and he did not agree that the patient was stabilised when he reached for the patient's jaw;
  4. he had previously been spat on by a patient and required medical testing over a 12-month period and his actions prevented this from happening to PSS Quinn; and
  5. he believed he was doing the right thing at the time as he was reacting to the violent situation where he and others were at risk and 'adrenaline and stress levels' were high;
  • the mandibular angle pressure point technique has the effect of submission and cessation of intentional motor activity, and causes medium to high pain intensity and that the technique should be used when the patient is displaying passive resistance, such as grabbing a rail or linking; and
  • it was noted that Mr Lam advised the investigator he used the technique to prevent the patient from spitting at one of his colleagues and that the video footage showed a PSO had already turned the patient's head towards the wall and away from the PSO when Mr Lam used the technique.[127]
  1. [106]
    Mr Lam's evidence-in-chief about this allegation was that when he attended the code black in the Emergency Department Resuscitation area, the patient was displaying aggressive behaviour towards employees of the Health Service, including towards the PSOs, in that the patient was punching his hand repeatedly in an intimidating manner and was telling employees that he was going to 'smash us' and 'knock us out'.  Mr Lam stated that the patient appeared to be intoxicated or under the influence of some substance and that a decision was made that the patient should leave the Hospital.[128]
  1. [107]
    Mr Lam then stated that:
  • the patient began to leave voluntarily, but when he started to walk in a direction which was not towards the exit, he was directed the other way by the PSOs;
  • the patient again became verbally and physically aggressive, and was subsequently restrained by two PSOs;
  • while the other PSOs had restrained the patient against the wall, the patient's head was still mobile and that the patient was moving his head towards the direction of the other PSOs;
  • he (Mr Lam) was very concerned about the patient spitting on the other PSOs considering the violent behaviour the patient had been exhibiting towards the other employees of the Health Service, so he attempted to restrain the patient's head and turn it towards the wall, his reasoning being that he was particularly sensitive to being spat on as he had been spat on previously as described earlier;
  • he understood that PSS Quinn was also concerned about the patient spitting as that was set out in the incident report;
  • he kept telling the patient to 'just keep walking', and by this he meant that the patient had been directed to leave and that he (the patient) should follow the direction of the other PSOs and leave the Hospital in the manner directed and in doing so, he asked the patient 'Do you understand that?' as a way of eliciting a response that the patient would follow the direction to leave the Hospital; and
  • he denied he was using a pain compliance hold, he was merely trying to prevent the patient from spitting on the other PSOs by holding the patient's head, he did not believe he used inappropriate force in this instance and stated that after that incident, none of his colleagues or supervisors raised any concerns with him about his conduct or the force he used.[129]
  1. [108]
    Mr Lam's body worn camera footage relevantly depicts:
  • a clean-shaven, male patient who was shirtless and wearing shorts, in a highly agitated state, talking to medical and nursing staff and three PSOs;[130]
  • three PSOs (not including Mr Lam) take the patient and physically put him on a bed;[131]
  • the patient, while seated on the bed, becomes extremely aggressive and threatening;[132]
  • a direction is given by a Health Service employee that the patient is to leave the Hospital and Mr Lam tells the patient to get out;[133]
  • the patient walks down the hallway and then turns left in the wrong direction to be able to exit the Hospital and is followed by the PSOs including Mr Lam at which point the patient becomes physically aggressive as well as verbally aggressive;[134]
  • the patient is then directed by the PSOs as to the correct direction to exit the Hospital, the patient becomes aggressive, the matter escalates and the PSOs restrain the patient at a doorway, by grabbing his neck, bending his left arm behind his back and taking control of his right arm and tilting the patient's head left towards the wall;[135]
  • as this occurs, Mr Lam tells the patient to keep walking and then Mr Lam comes from behind the patient, places his right hand to the right-hand side of the patient's jaw, puts his left-hand fingers on the left-hand side of the patient's head, momentarily places his left-hand thumb at the base of the patient's head and then places the left-hand under the left side of the patient's jaw and tells the patient to keep walking;[136]
  • Mr Lam's contact with the patient's head, as described immediately above, given the patient's verbal response, seems to agitate the patient;[137] and
  • Mr Lam releases his hold on the patient and the patient then continues to walk down the hallway, restrained by a PSO on each arm, and exits the Hospital.[138]
  1. [109]
    In cross-examination, Mr Lam said that:
  • his hold on the patient was not a compliance hold and that the patient was trying to spit on PSS Quinn;[139]
  • he was trying to stop the patient spitting on PSS Quinn and that PSS Quinn said he was concerned about the patient spitting on him;[140]
  • when it was suggested that the PSOs that were present had pushed the patient's head towards the wall so that there was no risk of spitting, his response was that he ensured that the patient's face faced the wall but that he did not use any pressure;[141]
  • a technique he had been taught to prevent a patient from spitting was to put a gas mask on the patient but that the PSO has to have time to do that;[142]
  • he did not agree that, to stop a person spitting, he was taught to place their head down and walk the person out, however, he stated that it was not practical to put the patient's head down as his head would have hit the wall;[143] and
  • he denied that what he did, in respect of this patient, escalated the patient or that his actions were inappropriate.[144]
  1. [110]
    Mr Jackson's evidence-in-chief was that Mr Lam's actions, as seen in the body worn camera footage, was not consistent with a restraint used to prevent spitting by a patient.[145] 
  1. [111]
    Mr Jackson's further evidence was that if the head is to be restrained, it is done from the front of the patient and not the rear and that to prevent spitting, PSOs are taught to bend the patient forward to limit their view or apply an oxygen mask.[146]
  1. [112]
    Mr Jackson also stated that:
  • from the body worn camera footage, Mr Lam appeared to be using a hypoglossal technique from behind the patient, using both hands, and that he did not understand why Mr Lam applied pressure to the patient's neck area from behind, yet told the patient to keep walking forward;
  • such a technique was inconsistent with Mr Lam's training because Mr Lam stated he was trying to assist the patient move forward but he was pulling the patient's head backwards; and
  • by Mr Lam using that technique, it further escalated the situation.[147]

The AWU's submissions

  1. [113]
    Once again, the AWU submitted that Mr Lam's evidence about this allegation presented an entirely reasonable version of events and that Mr Lam clearly explained his rationale for why he conducted himself in the way that he did.[148]

The Health Service's submissions

  1. [114]
    The Health Service submitted that:
  • during cross-examination, Mr Lam denied that he:
  1. used a compliance hold on the patient while the patient was already restrained, stating that he used a hold to give the patient instruction to stop him spitting at PSS Quinn and to turn his face to the wall;
  2. applied any pressure; and
  3. further escalated the patient;
  • Mr Lam accepted that:
  1. the patient's head was already facing the wall;
  2. the patient had not shown any signs of spitting before he applied the hold; and
  3. he could have told the patient to face the wall, instead of putting his fingers behind the patient's neck;
  • in the circumstances, there was no immediate risk to the patient spitting on Mr Lam or the other security staff in attendance when Mr Lam stuck his fingers into the patient's jaw and cheek and that there were other options available to Mr Lam had he been concerned about spitting which included bending the patient's head toward the ground or applying an oxygen mask; and
  • Mr Lam's use of a compliance hold in the circumstances was again an inappropriate and unnecessary use of force.[149]

My determination

  1. [115]
    It is true that the Security Incident Details report for this matter records that:

Due to the patient's behaviour and him resisting PSO's had to steady themselves, and placed patient against the wall.  PSS Quinn had the patients face facing him and Quinn believe that patient was about to spit in his direction.  Quinn placed his hand against the side of the patients face to stop any attempt of the patient spitting at him.[150]

  1. [116]
    However, Mr Jackson's evidence was that Mr Lam's actions were not consistent with restraint used to prevent spitting by patient.  Further, Mr Jackson's evidence was that Mr Lam appeared to be using a hypoglossal technique from behind the patient. 
  1. [117]
    From what I viewed from Mr Lam's body worn camera footage, it did not appear to me that Mr Lam's conduct was an error of judgement or an innocent mistake.  It appears to me that Mr Lam's conduct was deliberate and the way that he placed his left-hand fingers on the left side of the patient's head and had his thumb pressed on the back of the patient's head, although it was momentary, appeared to be for the purpose of inflicting pain on the patient to get him to comply with the direction for him to leave the Hospital. 
  1. [118]
    Furthermore, it does not appear to me that Mr Lam's conduct would have had the effect of preventing the patient from spitting at anyone.  As set out above, it appears to me that Mr Lam's conduct was for the purposes of, momentarily, inflicting pain on the patient to get him to comply with the direction of the Health Service staff.
  1. [119]
    For the reasons given above, I do not accept Mr Lam's explanation of his conduct in respect of Allegation three.
  2. [120]
    In my view, the body worn camera footage together with Mr Jackson's evidence, proves on the balance of probabilities that Mr Lam engaged in inappropriate conduct in an official capacity and, specifically, his conduct was a deliberate departure from the accepted standards required by the Health Service in respect of use of force.  The way Mr Lam applied that force was inconsistent with his training and what was required by the Health Service. 
  1. [121]
    Mr Lam engaged in misconduct within the meaning of s 187(1)(b) of the PS Act in that he engaged in inappropriate conduct in an official capacity when he used inappropriate force towards the patient.

Allegation four

The allegation and its particulars

  1. [122]
    This allegation was that on 7 April 2018, at approximately 11.20 pm, Mr Lam made inappropriate comments regarding Patient UR112361 to Ms Cognet and PSO Geros during a code black emergency response (Security Incident SIS030341).
  1. [123]
    The particulars included:
  • a code black was called in the Resuscitation Bay in the Emergency Department at 11.20 pm on 7 April 2018 due to aggressive behaviour by the patient when he refused to leave the Hospital;
  • Mr Lam responded to the incident with PSO Geros and four other PSOs;
  • the patient was not listening to the clinicians and was calling staff inappropriate names;
  • the patient settled down when his sister arrived and engaged with the patient and the code black was stood down at 11.59 pm;
  • following the incident, a complaint was made by the Clinical Team Coordinator (Ms Cognet) ('the CTC') who reported Mr Lam made inappropriate comments about the patient to her during the code black;
  • specifically, the CTC reported the conversation as follows:
  1. Mr Lam approached the CTC and said: 'I want to slap him around';
  2. the CTC responded: 'What did you say?';
  3. Mr Lam said: 'Can I slap him?';
  4. the CTC asked: 'Is your camera on?';
  5. Mr Lam responded with something like 'I don't care'; and
  6. Mr Lam then left the area at the CTC's request;
  • a complaint was made which was referred to the MAC which determined that the matter, if proven, would not amount to corrupt conduct, however the conduct may be a breach of the Code and returned the matter to the Health Service to manage;
  • an external investigator was then engaged to investigate the matter;
  • audio recordings from the body worn cameras captured two conversations where Mr Lam was heard to make inappropriate comments about the patient during the code black response, specifically:
  1. when discussing the patient's manner when talking to the doctors with PSO Geros, Mr Lam stated the patient: '… needs a couple of smacks across the chops, that's what he needs'; and
  2. when speaking to the CTC, Mr Lam stated 'Can I? Can I? Can I give the boy a couple of smacks?' and repeated '… a couple of smacks' when questioned by the CTC;
  • at interview, Mr Lam advised the investigator:
  1. he acknowledged he did make the comment to PSO Geros as reported above, but that he did not act on the comment and he made the comment to make light of the situation;
  2. he considered the conversation with the CTC to be simply making conversation and banter and he noted the video footage showed the CTC smiling during the conversation with him; and
  3. he considered he may have been targeted by his management team and was a victim of a witch-hunt;
  • the Australian Charter of Healthcare Rights ('the Charter') states that all patients have a '… right to be shown respect, dignity and consideration' and that the comments Mr Lam made about the patient to PSO Geros and to the CTC may not have been consistent with the expectation detailed in the Charter; and
  • the Public Sector Ethics Act 1994 states that public sector employees must '… show respect towards all persons, including employees, clients and the general public' and '… are committed to honest, fair and respectful engagement with the community'.[151]
  1. [124]
    Mr Lam's evidence-in-chief about this allegation was that:
  • he attended a 'code black' in the Resuscitation Bay of the Emergency Department due to a patient who was exhibiting aggressive behaviour, who was calling employees of the Health Service inappropriate names, who was upset and was being very difficult with the employees who were trying to assist him;[152]
  • eventually, the patient began to calm down and he made a comment, out of the earshot of the patient that: 'he needs a good slap around the chops' and 'can I slap him?';[153]
  • he was trying to add levity to a tense situation and that he never intended to act upon his comments and actually harm the patient;[154]
  • other employees were also making light-hearted comments, with one nurse commenting on whether the patient had been drinking bourbon or gin as he was so upset;[155]
  • the comments he made were not aggressive, and there was nothing to suggest he would actually carry out the comments;[156]
  • he admitted to making the comments on a number of occasions, he regrets making the comments, he was upfront and contrite about making the comments, and if presented with a similar scenario, he would not make the comments again;[157] and
  • he believed he was being held to a higher standard than his colleagues as he was aware that other PSOs and employees of the Health Service, who have made comments of a similar nature, have not been disciplined or dismissed.[158]
  1. [125]
    Mr Lam's body worn camera footage depicts:
  • a young male patient dressed in a black t-shirt and black long trousers surrounded by, it would appear, Health Service and Queensland Ambulance Service employees and they are speaking to the patient who appears to be in a distressed state and stated that he wanted to go to bed;[159]
  • two PSOs taking the patient by each of the patient's arms and leading him to a bed in a cubicle where the patient then lies down on the bed and looks at his mobile phone;[160]
  • a nurse then enters the cubicle to speak to the patient, the patient verbally abuses the nurse, prompting a PSO to enter the cubicle and direct the patient to cooperate and to stop swearing and the nurse then continues a conversation with the patient;[161]
  • the patient then appears to speak to someone on the mobile phone;[162]
  • Mr Lam then asks a Health Service employee to go into the cubicle and to remove a metal rod connected to the end of the bed which the Health Service employee removes;[163]
  • the nurse then continues conversing with the patient and the patient then becomes upset and begins crying;[164]
  • a nurse then enters the cubicle in an attempt to talk to the patient while he is on the mobile phone, the patient motions for the nurse to leave, the nurse leaves, the patient then begins remonstrating with other staff members and PSOs, makes a rude gesture to the PSOs with the middle finger of his left hand and then appears to continue looking at his mobile phone;[165]
  • Mr Lam then says, in a very low voice and in the immediate presence of PSO Geros: 'Needs a couple of smacks across the chops, that's all he needs';[166]
  • three nurses then enter the cubicle, speak to the patient and inform the patient that his sister has arrived, the patient then starts crying again, and the patient's sister then arrives;[167]
  • Ms Cognet then appears, near the cubicle, Mr Lam's left hand appears over the lens of his body worn camera and he says 'Can I give him a couple of smacks', Ms Cognet says, 'Can you give him what?' to which Mr Lam replies 'A couple of smacks'.[168]
  1. [126]
    When cross-examined, Mr Lam admitted to making the comments that are heard on the body worn camera footage audio.[169] When Mr Lam was asked if he thought the behaviour he exhibited demonstrated a high standard of workplace behaviour and personal conduct, Mr Lam's answer was: 'No'.[170]
  1. [127]
    Mr Lam stated that he made the comments to make light of the situation.[171] 
  1. [128]
    Mr Lam also said he was vaguely aware of the Charter and when it was put to him that his comments did not comply with the Charter he stated that his comments were not directed to the patient.[172] 
  1. [129]
    Mr Jackson's evidence was that he considered the comments made by Mr Lam to be wholly inappropriate and inconsistent with Mr Lam's role as a PSO and that if the patient or a family matter heard the comments, it could have inflamed an already tense situation, placing Mr Lam and others in an unsafe situation.[173]

The AWU's submissions

  1. [130]
    The AWU submitted that Mr Lam's evidence clearly explained what happened.[174]

The Health Service's submissions

  1. [131]
    The Health Service submitted that Mr Lam, in cross-examination, accepted his behaviour did not demonstrate a high standard of workplace behaviour and personal conduct, but that Mr Lam downplayed the seriousness of the comments he made by saying they were made to make light of the situation and were not directed to a patient or a family member.[175]

My determination

  1. [132]
    I do not find that Mr Lam contravened, without reasonable excuse, cl 1.5 of the Code. 
  1. [133]
    While that part of the Code provides that an employee bound by the Code will treat clients with courtesy and respect, it seems to me that Mr Lam's comments were not made in a serious way, were not made in a way so that the patient or a member of the public could have heard his comments and was banter to make light of the situation.

Other matters raised by Mr Lam

Bullying and discrimination

  1. [134]
    Mr Lam further stated that in the time he was employed as a PSO, he was subject to bullying and discrimination from colleagues, supervisors and managers, he had raised his concerns with the Health Service but his complaints were not acted upon and that he feels he has been targeted by the Health Service and has been repeatedly denied opportunities for advancement and full-time permanency.[176]
  1. [135]
    Mr Lam was cross-examined about these claims.  His evidence was that he made these claims to the Health Service in his show cause response during the disciplinary process.[177]  Mr Lam agreed that on 6 December 2018 he was invited to make a complaint but that he did not make such a formal complaint of the Health Service.[178]
  2. [136]
    There is no evidence that Mr Lam, whilst employed by the Health Service was the subject of bullying or unlawful discrimination and there is no evidence that tends to prove the allegations were made against Mr Lam as a result of any bullying or discrimination by any person.

The Health Service did not follow the appropriate disciplinary policies and procedures

  1. [137]
    Mr Lam stated that he believed the management of the Health Service had failed to follow the appropriate disciplinary policies and procedures in his case.[179]
  1. [138]
    Mr Lam's evidence was that from the date of the first allegation until after the date of the fourth allegation, not one of his supervisors/managers raised with him that the force he was using was inappropriate and if that had been the case, he would have had the opportunity to change the techniques he was using.[180] 
  1. [139]
    Mr Lam further stated that when he met with management on 9 April 2019, specifically, Mr Graham Cameron, Security Operations Manager, he was told by Mr Cameron:
  • he did not require union representation;
  • Mr Nigel Hoy, Senior Director, Operational Support Services had already viewed the footage and that once he (Mr Cameron) had watched the footage, the matter would be finalised.[181]
  1. [140]
    Mr Lam also stated that Mr Cameron downplayed the seriousness of the incidents.[182]
  1. [141]
    Exhibit 6 was a file note compiled by Mr Cameron about his meeting with Mr Lam on 9 April 2018 when Mr Cameron played the relevant body worn camera footage to Mr Lam ('Mr Cameron's file note'). 
  1. [142]
    The AWU submitted that Mr Lam's evidence should be preferred by the Commission over the untested file note of Mr Cameron because Mr Cameron did not give evidence of the alleged conversation between himself and Mr Lam and, as such, Mr Cameron's file note remains untested.[183]
  1. [143]
    The AWU further submitted that there was nothing in the evidence which demonstrated that the Health Service did attempt to curb Mr Lam's alleged inappropriate conduct.  In developing this submission, the AWU, while referring to the fact that the Commission is not bound by the rules of evidence, submitted that '… it is open to the Commission to draw an inference that the evidence of Mr Cameron (had he appeared in the Health Service's case) would have been detrimental to the Respondent's case'[184] and in doing so cited the decision of Jones v Dunkel.[185]
  1. [144]
    I cannot accept the AWU's submissions about the failure of the Health Service to call Mr Cameron to give evidence. 
  1. [145]
    The principle in Jones v Dunkel was referred to in Kuhl v Zurich Financial Services Australia.[186] In that case, Heydon, Crennan and Bell JJ stated that two inferences may be drawn from the application of the principle, namely:
  • the unexplained failure by a party to give evidence or to call a witness or tender certain documents may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party's case and that is particularly so where it is the party which is the uncalled witness; and
  • the failure to call a witness may also permit a court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.[187]
  1. [146]
    The inferences permitted by Jones v Dunkel which are drawn, if at all, are drawn once all the evidence in the case is in.[188] Further, if the evidence which has been admitted is enough to prove the case of the party who was not called a witness, the tribunal of fact could be justified in not counting the failure of that party to call that witness as something that reduces the strength of that case.[189]
  1. [147]
    In the present case, the only inference that could be drawn is that Mr Cameron's evidence would not have assisted the Health Service's case.  It seems to me that the inference the AWU seeks to draw, based upon the principle in Jones v Dunkel, is a step too far, namely, that the evidence of Mr Cameron would have been detrimental to the Health Service's case.  That is not what the principle in Jones v Dunkel permits.
  1. [148]
    In any event, having regard to all the evidence before the Commission, including the evidence from the body worn cameras, Mr Lam's evidence and Mr Jackson's evidence, I am not prepared to find that Mr Cameron's evidence would not have assisted the Health Service. 
  1. [149]
    It is apparent from Mr Cameron's file note that:
  • in respect of Allegation two, Mr Cameron told Mr Lam that the way that he acted was not the way he was trained in the use of that pressure point and that he used it on four occasions and continuously escalated the patient;[190]
  • in respect of Allegation three, Mr Cameron stated that the body worn camera footage clearly showed that Mr Lam rushed up to a restrained patient, Mr Lam applied the mandibular angle compliance technique, caused pain to the patient and also escalated the patient; and Mr Cameron told Mr Lam that it was unnecessary and caused the patient to escalate;[191]
  • in respect of Allegation one, Mr Cameron stated that Mr Lam had used a mandibular angle compliance technique on a patient, that it obviously caused the patient an extreme amount of pain, that the manner in which Mr Lam restrained the patient was not how he was trained and that Mr Lam was driving his thumb deep into the side of the patient's jaw;[192]
  • Mr Lam refused to admit he did anything wrong, and when Mr Cameron asked Mr Lam if he needed to be retrained, Mr Lam responded by stating that he knew what he was doing and he did not need retraining;[193]
  • Mr Cameron then told Mr Lam that he needs to stop because someone would get hurt in response to which Mr Lam just dismissed Mr Cameron;[194] and
  • after a conversation about complaints Mr Lam made about PSS Spencer, Mr Cameron records that he told Mr Lam '… to keep doing his job and he then left.'[195]
  1. [150]
    Mr Lam also stated that at all times he was responding to the allegations, he remained at work and undertook his normal duties and that he was never stood down from his employment while the allegations were being investigated; and that the Health Service did not stand him down from his employment even after it had been determined that the allegations were substantiated and while the Health Service was considering what penalty should be imposed.[196]
  1. [151]
    Having regard to the file note of Mr Cameron's discussions with Mr Lam, it is clear, on the face of that file note, that Mr Cameron was critical of Mr Lam's conduct in respect of Allegations one, two and three.
  1. [152]
    In my view, Mr Cameron's summary of what was depicted in the body worn camera footage, in respect of Allegations one, two and three is generally consistent with the body worn camera footage. This is because:
  • in respect of Allegation one, Mr Cameron said that he could see from the body worn camera footage that Mr Lam was driving his thumb deep into the side of the patient's jaw, which is consistent with what I viewed from the body worn camera footage;
  • in respect of Allegation two, Mr Cameron said that he could see from the body worn camera footage that it was Mr Lam and not PSO Glassie that was using the mandibular angle restraint and that his actions escalated the patient, which is consistent with what I viewed from the body worn camera footage; and
  • in respect of Allegation three, Mr Cameron said that Mr Lam rushed up to restrain and apply a mandibular angle compliance technique on the patient which caused pain to the patient and escalated the patient, which, again, is consistent with what I viewed from the body worn camera footage.
  1. [153]
    In addition, Mr Cameron's summary of Mr Lam's responses is generally consistent with Mr Lam's evidence before the Commission. This is because:
  • in respect of Allegation one, Mr Cameron said that Mr Lam said he did nothing wrong, which is consistent with Mr Lam's present evidence;
  • in respect of Allegation two, Mr Cameron said that Mr Lam said he was trying to get the patient to face forward and listen to the direction from the nurse, which is consistent with Mr Lam's present evidence; and
  • in respect of Allegation three, Mr Cameron said that Mr Lam said he did not use the mandibular angle compliance technique and that he was trying to keep the patient's head straight so that he did not spit on PSS Quinn, which is consistent with Mr Lam's present evidence.
  1. [154]
    Further, it seems to me that Mr Jackson's criticisms of Mr Lam's conduct in respect of Allegations one, two and three are generally consistent with the criticisms made by Mr Cameron, as reported to Mr Lam and referred to in Mr Cameron's file note. This is because:
  • in respect of Allegation one, Mr Cameron said Mr Lam's actions were not as he would have been trained which is consistent with Mr Jackson's evidence;
  • in respect of Allegation two, Mr Cameron said that Mr Lam's actions escalated the patient and was not necessary as the patient was complying, which is generally consistent with Mr Jackson's evidence; and
  • in respect of Allegation three, Mr Cameron said that Mr Lam's actions were unnecessary and caused the patient to escalate, which is also consistent with Mr Jackson's evidence.
  1. [155]
    Once again, having regard to all the evidence presently before the Commission, including the evidence from the body worn cameras, Mr Lam's evidence and Mr Jackson's evidence, it seems to me that:
  • the summary of the body worn camera footage in respect of Allegations one, two and three, as recorded in Mr Cameron's file note, is reasonably accurate;
  • Mr Lam's responses to Mr Cameron, as recorded in Mr Cameron's file note, is generally consistent with Mr Lam's explanations given before the Commission; and
  • Mr Cameron's criticisms of Mr Lam's conduct in respect of Allegations one, two and three are generally consistent with those given by Mr Jackson before the Commission.
  1. [156]
    While it is true that Mr Lam was not suspended, pending the results of the investigation conducted in respect of Allegations one, two, three and four, Ms Bloch's evidence was that Mr Cameron's discussion with Mr Lam occurred prior to the allegations regarding Mr Lam's conduct being referred to the CCC.[197] 
  1. [157]
    Ms Bloch also stated that suspending an employee was a complicated issue in that employees had to be, provided with natural justice, there were financial issues involved regarding having an employee sitting at home doing nothing and that because Mr Lam worked in a team environment with other PSOs, suspension was not considered necessary.[198]
  1. [158]
    While there is no evidence that Mr Lam, prior to the incidents the subject of Allegations one, two and three, was advised by his managers that the level of force he was using was inappropriate, it is the case that Mr Lam had been trained in the appropriate use of force. For the same reasons I give below concerning the fact Mr Lam was not warned about his conduct prior to his dismissal and in respect of his claim his dismissal was disproportionate to his conduct, I do not consider that lack of advice by his managers renders his dismissal harsh, unjust or unreasonable.

Was Mr Lam's dismissal harsh, unjust or unreasonable having regard to s 320 of the Act?

Notification of reason for dismissal

  1. [159]
    By Mr Calvert's letter dated 29 January 2019,[199] Mr Lam was notified of the reasons for his dismissal.

Mr Lam's dismissal related to his misconduct

  1. [160]
    Mr Lam's dismissal related to his conduct. 
  1. [161]
    For the reasons set out above, I find that Mr Lam:
  • engaged in misconduct within the meaning of s 187(1)(b) and s 187(4)(a) the PS Act in respect of Allegations one, two and three; and
  • did not contravene, without reasonable excuse, cl 1.5 of the Code, within the meaning of s 187(1)(f)(ii) of the PS Act, in respect of Allegation four.

Mr Lam was not warned about his conduct

  1. [162]
    It is the case that Mr Lam, prior to his dismissal, was not warned about his conduct.
  1. [163]
    The AWU submitted that:
  • Mr Lam has had no prior warnings or disciplinary matters in his employment with the Health Service which is important for two reasons:
  1. first, that Mr Lam had received no prior warnings was instructive because it establishes that his dismissal was harsh; and
  2. secondly, because he had received no prior warnings, Mr Lam had no reason to think the way he conducted himself in the workplace was inappropriate;
  • a warning serves as a notice to an employee that their performance or conduct should improve and while it is certainly a tool of discipline employers utilise, it can in some instances be a helpful reminder to an employee that they are not performing to an adequate standard;
  • the importance of an employer warning an employee of concerns they may have in carrying out the requirements of the role is highlighted by the fact it is referred to in s 320(c)(i) of the Act;
  • in the present case, the Health Service did not provide sufficient warnings to Mr Lam that his conduct was not considered to be acceptable and that there was not the requisite intervention by the Health Service at an early stage as is required under the Department of Health Human Resources Policy E10;
  • the evidence shows that there was no discussion from any of the managers or supervisors of the Health Service about Mr Lam's conduct prior to the Health Service going straight to a disciplinary process and, as such, there was no opportunity for Mr Lam to attempt to improve his conduct to the required standard of the Health Service; and
  • there is no evidence before the Commission to justify reaching a finding that the Health Service did attempt to intervene and curb Mr Lam's alleged inappropriate behaviour.[200]
  1. [164]
    The lack of any warning to Mr Lam is a relevant consideration as to whether his dismissal was harsh, unjust or unreasonable.  However, in my view it is not determinative. There are two reasons for this.
  1. [165]
    First, Mr Lam was an experienced PSO employed by the Health Service.  Mr Jackson's evidence was that Mr Lam undertook a five day intensive Aggressive Behaviour Management ('ABM') training course when he commenced in February 2014 and attended regular one-day ABM refresher courses on 5 June 2014, 18 June 2015, and 9 December 2016 and most recently on 7 March 2018.[201]
  1. [166]
    Secondly, it seems to me, having regard to the regular training Mr Lam received, that the conduct in which Mr Lam engaged was so inconsistent with his training and the Health Service's expectations of his conduct as a PSO, that the fact that he was not warned about his conduct does not, on its own, mean that his dismissal was harsh, unjust or unreasonable. 

Mr Lam was given an opportunity to respond

  1. [167]
    Clearly, having regard to the show cause notice processes undertaken by the Health Service in respect of the Allegations one, two and three, Mr Lam was given an opportunity to respond to the claims about his conduct prior to his dismissal.

Other matters the Commission considers relevant

Was dismissal proportionate to Mr Lam's misconduct?

  1. [168]
    The question has arisen as to whether Mr Lam's dismissal was proportionate to the disciplinary findings.  As I have indicated above, in my view, Mr Lam did not contravene cl 1.5 of the Code in respect of Allegation four.
  1. [169]
    However, Mr Lam did engage in misconduct, within the meaning of s 187(1)(b) of the PS Act, in respect of Allegations one, two and three.
  1. [170]
    Mr Lam had been employed by the Health Service as a PSO since 2014 and had been trained to perform the duties of that position which included receiving training in occupational violence prevention and occupational violence refresher training. Mr Jackson's uncontradicted evidence was that on 7 March 2018, Mr Lam received ABM refresher training including in restrictive practices.[202] That training was after the date of Allegation one but before the dates of Allegations two and three.
  1. [171]
    For these reasons, I am not satisfied it is a case that further training would result in Mr Lam amending his conduct.  It seems to me that notwithstanding the training Mr Lam did receive, in respect of the situations in which he found himself concerning Allegations one, two and three, he was incapable of complying with the methods of restraint he was required to observe by the Health Service.
  1. [172]
    While it is true that Mr Lam was not suspended following the allegations being referred to an external investigator for investigation, that still does not detract from Mr Lam's proven conduct.  That fact alone, does not render, in my view, Mr Lam's dismissal harsh, unjust or unreasonable or that the disciplinary penalty imposed of termination of employment was disproportionate to his conduct.
  1. [173]
    Mr Lam's conduct in respect of Allegations one, two and three was deliberate and was not in conformity with his training and with the methods of restraint required to be observed, by a PSO, by the Health Service.
  1. [174]
    Having regard to his position as a PSO and the trust placed in him by the Health Service, Mr Lam's dismissal was proportionate to the conduct in which he engaged.
  1. [175]
    The AWU also referred to the decision of the Fair Work Commission in Scott v Latrobe Regional Hospital ('Scott')[203] and submitted that while the dismissed employee in that case was found to be dismissed for a valid reason on conduct similar to that engaged in by Mr Lam, the dismissal was found to be harsh, unjust and unreasonable because it was disproportionate to the conduct alleged. The AWU further submitted that, in Scott, the dismissed employee had previously been counselled about the techniques the employee used in the incident which led to his dismissal, which was different to Mr Lam's circumstances.[204]
  1. [176]
    The AWU submitted that it was open to conclude that Mr Lam's dismissal was harsh unjust or unreasonable due to the lack of prior notice of the concerns, about Mr Lam's conduct, by the Health Service.[205]
  1. [177]
    I am not persuaded by these arguments about the decision in Scott.  This is for two reasons.
  1. [178]
    First, the allegation against Mr Scott was in respect of only one incident, namely, that on 20 June 2018, Mr Scott used disproportionate, excessive and unnecessary force in relation to an intoxicated mental health patient attempting to leave the Emergency Department of the Latrobe Regional Hospital.[206] The Fair Work Commission found that Mr Scott had got too close and in the face of the patient, and made physical contact with the patient with some force in circumstances where Mr Scott was not in imminent personal danger so as to be in a position of self-defence.[207] To that extent, the conduct of Mr Lam was different to that of Mr Scott. 
  1. [179]
    Secondly, the reason dismissal of Mr Scott was found to be harsh unjust and unreasonable was because of the mitigating circumstances in that case. The Fair Work Commission found:
  • Mr Scott had been let down by other employees on the scene who failed to deescalate the situation;[208]
  • Mr Scott's conduct had to be viewed in the context of the absence of a clinical lead of the Emergency Response Team in that, at the time of the incident, the only members of that Team who were present were security officers, one of whom was Mr Scott;[209]
  • Mr Scott had eight years' service without formal disciplinary action or written warning, was 53 years old and the dismissal caused him personal distress and financial loss;[210] and
  • the Latrobe Regional Hospital had failed to follow the discipline procedure in the applicable enterprise agreement.[211]
  1. [180]
    For the reasons given above, the facts in Scott are materially different from the facts concerning Mr Lam's circumstances. 
  1. [181]
    Furthermore, for the reasons I have given earlier, the fact that Mr Lam was not warned about his conduct prior to his dismissal does not persuade me that his dismissal was harsh, unjust or unreasonable.

Mr Lam's personal and economic circumstances

  1. [182]
    Mr Lam's evidence was that he is the sole wage earner for his household, that also cares for his disabled wife, his rent costs up to $1,000 per month and his living, medication and motor vehicle expenses cost up to $2,500 per month.[212]
  1. [183]
    Mr Lam's further evidence was that he was currently employed on a casual basis, performing security and maintenance work, earning approximately $2,500 per month and that, overall, it had been difficult for him to manage the cost of living and that he had to rely on family support and Centrelink payments to meet the cost of living and the necessary expenses in the time since his dismissal.[213]
  1. [184]
    The AWU submits that even if I find  that Mr Lam's actions were excessive or involved the use of inappropriate force, his dismissal can still be found to be harsh in light of Mr Lam's personal and economic circumstances as described in his evidence.[214]
  1. [185]
    While I have sympathy for Mr Lam's personal and economic circumstances following his dismissal, those circumstances, do not, on their own, outweigh the conduct in which Mr Lam engaged that led to his dismissal and the disciplinary procedure used. 
  1. [186]
    The reason I am not persuaded that Mr Lam's personal and economic circumstances compel the conclusion that his dismissal was harsh are the facts that:
  • Mr Lam had been trained in aggressive behaviour management and in pain compliance techniques by the Health Service before the incidents the subject of Allegations one, two and three; and
  • Mr Lam's most recent refresher training in aggressive behaviour management was on 7 March 2018, which was before the incidents referred to in Allegations two and three. 
  1. [187]
    The circumstances are not, for example, that there was only one incident of inappropriate or unnecessary force, isolated in time from any relevant training received by Mr Lam, which, in conjunction with his personal and economic circumstances, may have led to a conclusion that his dismissal was harsh.
  1. [188]
    Further, I do not accept the AWU's submission that the decision maker had knowledge of the existence of the impending second investigation into Mr Lam, and that such knowledge could have influenced the decision to dismiss Mr Lam.[215] There is no evidence which supports those contentions. Mr Calvert's decision was based on the substantiated facts concerning Allegations one, two, three and four.  
  1. [189]
    For these reasons, I am not satisfied that Mr Lam's dismissal was harsh, unjust or unreasonable.
  1. [190]
    Because of this finding, it is unnecessary for me to consider the evidence surrounding the disciplinary declaration made in respect of Mr Lam following his dismissal.

Conclusion

  1. [191]
    The ultimate issue for determination in this proceeding was whether Mr Lam's dismissal from his position as PSO within the Health Service was harsh, unjust or unreasonable. 
  1. [192]
    In my view, the evidence establishes that Mr Lam engaged in the misconduct the subject of Allegations one, two and three.
  1. [193]
    For the reasons given earlier in this decision, having regard to the matters in s 320 of the Act, I am not satisfied that Mr Lam's dismissal was harsh, unjust or unreasonable.
  1. [194]
    Mr Lam's application for reinstatement is therefore dismissed.

Footnotes

[1] Exhibit 1, para. 1.

[2] Ibid.

[3] Exhibit 8, exhibit GB-1, page 2.

[4] Exhibit 8, para. 12.

[5] Exhibit 8, para. 14.

[6] Exhibit 8, para. 16.

[7] Exhibit 8, para. 22.

[8] Exhibit 8, para. 28.

[9] Exhibit 8, exhibit GB-2, page 4 of 54.

[10] Exhibit 8, exhibit GB-2, page 4 of 54.

[11] Exhibit 8, exhibit GB-2, pages 4 and 5 of 54.

[12] Exhibit 8, exhibit GB-2, page 5 of 54.

[13] Exhibit 8, exhibit GB-2, page 2 of 54.

[14] Exhibit 8, exhibit GB-3, pages 1, 3, 5 and 7 of 11.

[15] Exhibit 8, exhibit GB-3, page 7 of 11.

[16] Exhibit 8, exhibit GB-3, page 9 of 11.

[17] Exhibit 8, exhibit GB-3, page 10 of 11.

[18] Exhibit 8, exhibit GB-3, page 10 of 11.

[19] Exhibit 8, exhibit GB-3, pages 10 and 11 of 11.

[20] Exhibit 1, exhibit EL-02, pages 1 to 8.

[21] Exhibit 1, exhibit EL-02, pages 8 to 9.

[22] Exhibit 1, exhibit EL-02, page 9.

[23] Exhibit 1, exhibit EL-03, pages 1 to 6 of 11.

[24] Exhibit 1, exhibit EL-03, pages 6 to 7 of 11.

[25] Exhibit 1, exhibit EL-03, pages 9 and 10 of 11.

[26] Exhibit 1, exhibit EL-04.

[27] Exhibit 1, exhibit EL-05.

[28] Exhibit 1, exhibit EL-05, page 2 of 3.

[29] Queensland Teachers' Union of Employees (for Norman Wayne Armstrong) v State of Queensland acting through Department of Education, Training and the Arts [2009] QIRC 11, [194] and [263] (Commissioner Asbury) ('QTU') and (Bruce) Campbell Gordon v Department of Corrective Services [2009] QIRC 18, [97] (Commissioner Fisher).

[30] Aird v Department of Community Safety, Queensland Ambulance Service [2013] QIRC 185, [54] (Deputy President Bloomfield).

[31] [2008] QSC 209 ('Mathieu').

[32] (1989) 16 NSWLR 197 ('Pillai').

[33] Pillai (n 32), 200 (Kirby P).

[34] Mathieu (n 31), [25] (Daubney J).

[35] Ibid [26] (Daubney J).

[36] Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 465 (McHugh and Gummow JJ).

[37] Ibid.

[38] Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258, 259 (Hall P) ('Walker').

[39] Walker (n 38), 259 (Hall P).

[40] Ibid.

[41] [1938] HCA 34; (1938) 60 CLR 336, 361-362 (Dixon J).

[42] Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171 (Mason CJ, Brennan, Deane and Gaudron JJ).

[43] Walker (n 38), 259 (Hall P).

[44] Ibid.

[45] QTU (n 29), [209] (Commissioner Asbury).

[46] T 1-9, ll 11-18.

[47] T 1-10, ll 37-40.

[48] T 1-10, ll 6-14.

[49] Exhibit 8, exhibit GB-3, pages 1, 2 and 3 of 11.

[50] Exhibit 1, para. 15.

[51] Exhibit 1, paras. 16-18.

[52] Exhibit 1, para. 19.

[53] Exhibit 1, para. 20.

[54] Exhibit 1, paras. 22-23.

[55] Exhibit 1, paras. 24-25.

[56] Exhibit 1, paras. 26-28.

[57] Exhibit 1, para. 29.

[58] PSO Boyle's body worn camera footage from 00:52 to 00:56.

[59] PSO Boyle's body worn camera footage from 00:57 to 02:46.

[60] PSO Boyle's body worn camera footage from 02:47 to 02:59.

[61] PSO Boyle's body worn camera footage from 03:00 to about 03:03.

[62] PSO Boyle's body worn camera footage from about 03:04 to about 03:37.

[63] PSO Boyle's body worn camera footage at 03:38.

[64] PSO Boyle's body worn camera footage from 05:09.

[65] PSO Boyle's body worn camera footage from 05:18.

[66] PSO Boyle's body worn camera footage from about 05:37.

[67] PSO Boyle's body worn camera footage from about 05:42 to 06:13.

[68] PSO Boyle's body worn camera footage at 06:14.

[69] T 1-17, ll 18-21.

[70] T 1-17, ll 28-29.

[71] T 1-17, ll 36-44.

[72] T 1-18, ll 12-15.

[73] T 1-18, ll 28-29.

[74] T 1-20, ll 20-34.

[75] T 1-21, ll 21-45.

[76] T 1-22, ll 21-45.

[77] T 1-24, ll 39-45.

[78] Exhibit 7, para. 43.

[79] Exhibit 7, para. 55.

[80] Exhibit 7, para. 47.

[81] Exhibit 7, para. 57.

[82] Exhibit 7, para. 57.

[83] Exhibit 7, paras. 48-49.

[84] Exhibit 7, paras. 50-53.

[85] Exhibit 7, para. 54.

[86] T 2-19, ll 6-15.

[87] T 2-19, l 40 to T 2-20, l 2.

[88] T 2-20, ll 4-39.

[89] The AWU's written submissions filed on 21 February 2020 ('the AWU's submissions'), paras. 18-20.

[90] The Health Service's written submissions filed on 24 January 2020 ('the Health Service's submissions'), para. 7.12.

[91] Exhibit 7, para. 1.

[92] Exhibit 7, para. 9.

[93] Exhibit 7, para. 7.

[94] PSO Boyle's body worn camera footage from 05:18 to 06:13.

[95] Exhibit 8, exhibit GB-3, pages 3, 4 and 5 of 11.

[96] Exhibit 1, paras. 37-40.

[97] Exhibit 1, paras. 41-42.

[98] Exhibit 1, paras. 43-55.

[99] T 1-26, ll 23-28.

[100] T 1-25, ll 41-47.

[101] PSO Johnston's body worn camera footage from 00:41 to 00:58.

[102] PSO Johnston's body worn camera footage from 00:59 to 01:00.

[103] PSO Johnston's body worn camera footage from 01:03 to 01:12.

[104] PSO Johnston's body worn camera footage from 01:13 to 02:30.

[105] PSO Johnston's body worn camera footage from 02:30 to 02:33.

[106] PSO Johnston's body worn camera footage from 02:33 to 02:36.

[107] PSO Glassie's body worn camera footage from 02:13 to 02:18.

[108] PSO Johnston's body worn camera footage from 02:50 to 03:09.

[109] PSO Johnston's body worn camera footage from 03:10 to 03:16.

[110] T 1-29, ll 20-26.

[111] T 1-29, l 34 to T 1-30 l 3.

[112] T 1-30, ll 12-39.

[113] T 1-31, l 41 to T 1-32, l 15.

[114] T 1-33, ll 1-13. 

[115] T 1-33, ll 5-13.

[116] T 1-33, ll 17-22.

[117] T 1-33, l 43 to T 1-34, l 15.

[118] T 1-34, ll 23-41.

[119] Exhibit 7, para. 63.

[120] Exhibit 7, para. 64.

[121] Exhibit 7, para. 65.

[122] Exhibit 7, paras. 66-67.

[123] Exhibit 7, para. 68.

[124] Exhibit 7, para. 69.

[125] The AWU's submissions, paras. 17-20.

[126] The Health Service's submissions, paras. 7.13-7.16. The Security Incident Details report is contained in Exhibit 8, exhibit GB-3, Document F2.  In that report, the following is relevantly recorded:

Male settled, however he continued his focus towards "Eric"

> This would be in part as the PSS had directed Eric to refrain from using pressure points whilst the patient was being escorted.< During the incident, the male could not tell one PSO from another and focus of hostility towards PSO Glassie whom he was now calling "Eric".

[127] Exhibit 8, exhibit GB-3, pages 5, 6 and 7 of 11.

[128] Exhibit 1, paras. 56-60.

[129] Exhibit 1, paras. 61-70.

[130] Mr Lam's body worn camera footage from 00:49 to 01:16.

[131] Mr Lam's body worn camera footage from 01:16 to 01:21.

[132] Mr Lam's body worn camera footage from 01:21 to 01:59.

[133] Mr Lam's body worn camera footage from 01:59 to 02:05.

[134] Mr Lam's body worn camera footage from 02:05 to 02:27.

[135] Mr Lam's body worn camera footage from 02:32 to 02:37.

[136] Mr Lam's body worn camera footage from 02:39 to 02:41.

[137] Mr Lam's body worn camera footage from 02:42 to 02:44.

[138] Mr Lam's body worn camera footage from 02:45 to 03:20.

[139] T 1-38, ll 32-38.

[140] T 1-38, l 40 to T 1-39, l 2.

[141] T 1-39, ll 26-37.

[142] T 1-41, ll 6-9.

[143] T 1-41, ll 26-35.

[144] T 1-42, ll 1-4. 

[145] Exhibit 7, para. 71.

[146] Exhibit 7, para. 71.

[147] Exhibit 7, para. 71.

[148] The AWU's submissions, paras. 17-20.

[149] The Health Service's submissions, paras. 7.17-7.21.

[150] Exhibit 8, exhibit GB-3, Document F3.

[151] Exhibit 8, exhibit GB-3, pages 7 and 8 of 11.

[152] Exhibit 1, para. 71.

[153] Exhibit 1, paras. 72-73.

[154] Exhibit 1, para. 74.

[155] Exhibit 1, para. 74.

[156] Exhibit 1, para. 75.

[157] Exhibit 1, para. 76.

[158] Exhibit 1, para. 77.

[159] Mr Lam's body worn camera footage from 00:18 to 00:38.

[160] Mr Lam's body worn camera footage from 00:39 to 01:26.

[161] Mr Lam's body worn camera footage from 01:27 to 01:53.

[162] Mr Lam's body worn camera footage from 01:54 to 02:53.

[163] Mr Lam's body worn camera footage from 02:50 to 03:08.

[164] Mr Lam's body worn camera footage from 03:09 to 04:11.

[165] Mr Lam's body worn camera footage from 04:12 to 04:47.

[166] Mr Lam's body worn camera footage from 06:35 to 06:38.

[167] Mr Lam's body worn camera footage from 07:12 to 09:45.

[168] Mr Lam's body worn camera footage from 10:43 to 10:46.

[169] T 1-47, l 1.

[170] T 1-46, ll 32-33.

[171] T 1-47, ll 4-5.

[172] T 1-46, ll 16-25.

[173] Exhibit 7, para. 72.

[174] The AWU's submissions, paras. 17-20.

[175] The Health Service's submissions, para. 7.24.

[176] Exhibit 1, paras. 78-80.

[177] T 1-47, ll 21-27.

[178] T 1-47, l 29 to T 1-48, l 9.

[179] Exhibit 1, para. 84.

[180] Exhibit 1, para. 85.

[181] Exhibit 1, para. 86.

[182] Ibid.

[183] The AWU's submissions, paras. 31-32.

[184] The AWU's submissions, para. 36.

[185] [1959] HCA 8; (1959) 101 CLR 298.

[186] [2011] HCA 11; (2011) 243 CLR 361.

[187] Ibid [63] Heydon, Crennan and Bell JJ.

[188] Manly Council v Byrne [2004] NSWCA 123, [54] (Campbell J, with Beazley JA at [1] and Pearlman AJA at [2] agreeing). 

[189] Ibid [55] (Campbell J, with Beazley JA at [1] and Pearlman AJA at [2] agreeing).

[190] Exhibit 6, page 1, para. 2.

[191] Exhibit 6, page 1, para. 3.

[192] Exhibit 6, page 2, para. 2.

[193] Exhibit 6, page 2, para. 3.

[194] Exhibit 6, page 2, para. 3.

[195] Exhibit 6, page 3, para. 6.

[196] Exhibit 1, paras. 87-88.

[197] T 2-13, ll 21-32.

[198] T 2-7, l 44 to T 2-8, l 14.

[199] Exhibit 1, exhibit EL-05, page 2 of 3.

[200] The AWU's submissions, paras. 22-30.

[201] Exhibit 7, para. 27 and exhibit MJ-2.

[202] Exhibit 7, exhibit MJ-2.

[203] [2019] FWC 5680 ('Scott') (Commissioner Cirkovic).

[204] The AWU's submissions, paras 63-68.

[205] The AWU's submissions, para. 69.

[206] Scott (n 203), [28]-[30] (Commissioner Cirkovic).

[207] Ibid [55].

[208] Ibid [79].

[209] Ibid.

[210] Ibid [81]-[82].

[211] Scott (n 203), [83]-[84] (Commissioner Cirkovic).

[212] Exhibit 1, paras 89-90.

[213] Exhibit 1, paras 91-92.

[214] The AWU's submissions, paras. 54-56.

[215] The AWU's submissions, paras. 57-61.

Close

Editorial Notes

  • Published Case Name:

    The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service

  • Shortened Case Name:

    The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service

  • MNC:

    [2020] QIRC 67

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    08 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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