Harvey v State of Queensland (Queensland Health)
[2024] ICQ 10
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- Unreported Judgment
- Harvey v State of Queensland (Queensland Health)[2024] ICQ 10
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Harvey v State of Queensland (Queensland Health)[2024] ICQ 10
Harvey v State of Queensland (Queensland Health)[2024] ICQ 10
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Harvey v State of Queensland (Queensland Health) [2024] ICQ 10 |
PARTIES: | ALISTAIR JOHN HARVEY (appellant) v STATE OF QUEENSLAND (QUEENSLAND HEALTH) (respondent) |
FILE NO: | C/2023/47 |
PROCEEDING: | Appeal |
DELIVERED ON: | 7 May 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 April 2024 |
MEMBER: | Davis J, President |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – UNFAIR DISMISSAL – WHAT CONSTITUTES – where the appellant was employed as a senior security officer by the State of Queensland through the Department of Queensland Health – where a patient at Prince Charles Hospital was acting in a violent and threatening manner in the emergency department – where the appellant and two other security officers responded to a call for assistance – where the appellant struck the patient three times with his baton – where the Department alleged that the conduct breached a code of conduct – where the appellant was directed to show cause why his employment ought not be terminated – where the appellant responded to the show cause notice – where the respondent terminated the employment of the appellant – where the appellant applied for reinstatement on the basis that his dismissal was unfair – where the Queensland Industrial Relations Commission dismissed the appellant’s application – where the appellant then appealed to the Industrial Court of Queensland – where the Industrial Relations Act 2016 limits rights of appeal where the grounds are errors of law or jurisdiction except by leave – where the appellant complained of factual errors by the Commission – whether there were factual errors – whether any factual errors amounted to errors of law – whether leave to argue other grounds ought be given – whether there was error by the Commission |
LEGISLATION: | Industrial Relations Act 2016, s 316, s 317, s 318, s 319, s 320, s 557, s 564(1), s 565 Public Service Act 2008, s 187, s 188 |
CASES: | Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 10, cited Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2) (1995) 61 IR 455; [1995] IRCA 540, followed Harvey v State of Queensland (Queensland Health) [2023] QIRC 295, related Henning v State of Queensland (Queensland Treasury) [2023] ICQ 9, cited O'Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61, followed Porche v State of Queensland (Department of Education) [2022] ICQ 3, cited Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393; [1987] HCA 27, followed Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22, cited Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50, cited |
COUNSEL: | Mr D O'Gorman SC with Mr T O'Brien for the appellant Mr A Scott KC with Ms N A-Khavari for the respondent |
SOLICITORS: | Susan Moriarty & Associates for the appellant GR Cooper, Crown Solicitor for the respondent |
- [1]
Background
- [2]Mr Harvey was employed as a senior security officer by the State of Queensland through the department known as Queensland Health. He was a long-term employee having been engaged in July 2006 before being promoted to senior security officer in May 2009.
- [3]The role of senior security officer was the role which Mr Harvey held at the time of the termination of his employment.
- [4]On 20 January 2020, in the early hours of the morning, Mr Harvey was on duty at the Prince Charles Hospital when he was called to an incident at the Emergency Department (the ED).
- [5]Mr Harvey responded to the incident with two other security officers, Mr Kevin Williams and Mr Maurus V. Mr V has a surname which people whose first language is English find difficult to pronounce so he goes by the name “Maurus V”.
- [6]Upon arriving at the ED, the three security officers found a patient in an agitated and aggressive state. The patient retreated to the rear of the waiting area. Mr Harvey drew his baton and directed the patient “down”. When the patient refused, Mr Harvey struck him three times with the baton to his thigh. The security officers took the patient down, applied handcuffs and called police.
- [7]A short time later the police arrived. The patient was arrested on suspicion of public nuisance and was taken away.
- [8]The incident and its aftermath in the ED are recorded on closed circuit television (CCTV) and on body cameras worn by the security officers.
- [9]To the extent it is necessary, evidence of the detail of the incident and the events which followed are analysed later when considering the grounds of appeal.
- [10]An investigation was undertaken by Queensland Health.
- [11]On 30 July 2020, a letter was sent to Mr Harvey directing him to show cause why he should not be disciplined[3] in relation to these allegations:
“Allegation 1
… on 27 January 2020, you engaged in misconduct when without reasonable justification, you struck a patient three times with an expanding metal baton in the waiting area of the Emergency Department of the Prince Charles Hospital.
Allegation 2
… on 27 January 2020, you failed to comply with policies and procedures of the Metro North Hospital and Health Service.
Allegation 3
… on 27 January 2020, you placed another staff member and patients at risk of harm when you facilitated a physical restraint in the waiting area of the ED, TPCH.”
- [12]Mr Harvey responded to the first show cause notice but then a second was issued to him on 9 November 2020. The second show cause notice advised him that the three allegations had been found substantiated and he was directed to show cause as to why his employment should not be terminated.
- [13]Mr Harvey responded to the second show cause notice but his employment was terminated on 26 February 2021.
- [14]An application for reinstatement was filed by Mr Harvey and heard by the Commission in April 2022. As earlier observed, that application was dismissed.[4]
- [15]Mr Harvey appealed that decision but lodged his application to appeal beyond the time limited by s 564(1) of the Industrial Relations Act 2016 (IR Act). He applies for leave to appeal out of time[5] and there is no opposition to leave being granted. Leave is granted.
The grounds of appeal
- [16]Mr Harvey’s application to appeal states the following grounds:
“5.1 The Commission erred in law and failed to exercise its jurisdiction by making material factual findings, directly relevant to the merits of the applicant’s case, which were:
5.1.1 entirely inconsistent with the evidence before it;
5.1.2 so inconsistent with the evidence as to give rise to a miscarriage of justice;
5.1.3 not supported by any published reasons as to why the said evidence was rejected and/or disregarded;
5.1.4 adverse to the applicant.
5.2 The material factual findings were:
5.2.1 The finding that the Applicant did not know what was happening in the Emergency Department before he attended at the request of staff;
5.2.2 The Applicant was the person who ‘blocked’ the patient in;
5.2.3 The Applicant did not see something down the back of [the patient]’s pants.
5.3 The particulars of the evidence relevant to paragraphs 5.1.1 and 5.1.2 above are to be found in Attachment A to this application.”
- [17]Mr O'Gorman SC and Mr O'Brien, for Mr Harvey, explained in their written outline of submissions that the appeal is based on three key findings which they submit should not have been made. They are:
“(a) The Appellant did not know what was happening in the Emergency Department before he attended at the request of staff (Alleged Error 1);
- The Appellant was the person who “blocked” the patient in (Alleged Error 2); and
- The Appellant did not see anything down the back of [the patient]’s pants (Alleged Error 3).”
- [18]These three findings, Mr Harvey submits, contributed substantially to a further finding by the Vice-President which is challenged:
“[57] The conduct of the Patient did not warrant physical intervention within such a short time of security arriving in the ED, being a period of 34 seconds, without considering alternative de-escalation options.”
- [19]Section 557 of the IR Act limits an appeal to this Court from the Commission to those based on an error of law or excess or want of jurisdiction except by leave.[6] Section 565 of the IR Act provides that the Court cannot give leave to appeal on other grounds unless it is in the public interest to do so.[7]
- [20]Private interests are not irrelevant when considering the public interest, but if leave is to be given, there should be consideration of factors more than just an appellant’s private interests.[8] The public interest includes having the system of resolving industrial disputes conducted properly.[9] Errors of fact may, in some circumstances, constitute errors of law and or jurisdictional error. While Mr Harvey’s grounds are based on alleged factual errors, the particulars of his arguments raise alleged errors of law, such as failing to take into account relevant evidence and failing to give proper reasons.
- [21]It is submitted for Mr Harvey that he should have leave under s 565 of the IR Act to argue any factual grounds supporting his appeal because:
- before the incident which culminated in his dismissal, he had been employed by Queensland Health for 14 years and had an unblemished employment record; and
- there is public interest in having persons fulfil the difficult role which Mr Harvey fulfilled and therefore a public interest in having such employees not unjustly dismissed.
- [22]Mr Scott KC, who led Ms A-Khavari for Queensland Health, pointed to ss 575(1) and 565 of the IR Act as limitations upon the jurisdiction of the Court to interfere on appeal. However, they accepted the public interest considerations identified by Mr Harvey to the extent that if the Court, having regard to the natural advantages enjoyed by the Vice-President[10], considered that one or more of those findings under attack was wrong then leave ought to be given.
- [23]I adopt that approach. It was not suggested that Mr Harvey could succeed in his appeal if he did not disturb at least one of the factual findings he challenges. I will consider the appeal by reference to the three alleged factual errors.
Alleged Error 1: the appellant had no knowledge of events in the ED until he attended with the other two officers
- [24]At paragraph [47] of the judgment of the Vice-President, this is said:
“[47] The above evidence is not consistent with the evidence given by the Applicant during the investigation that he walked into the incident ‘blind’.”
- [25]Mr Harvey submits that paragraph [47] suggests that his case in the Commission was that he entered the ED with no prior knowledge of the patient’s behaviour. In fact, he says he had viewed the patient’s misbehaviour through CCTV in his office within the hospital. He also says that before he entered the ED, Mr Williams said to him “It’s that [patient’s name] dude, I think”.
- [26]Mr Harvey gave unchallenged evidence that whilst sitting in his office, he was watching CCTV footage of the patient wielding a chair and threatening staff. He then walked to the ED. The body camera footage picks up Mr Williams telling Mr Harvey “It’s that [patient’s name] dude, I think”.
- [27]There was evidence of nursing staff to the effect that the patient had been aggressive and threatening before the security officers arrived in the ED. This behaviour, no doubt, was what Mr Harvey viewed on CCTV at his office.
- [28]It should be accepted that:
- Mr Harvey saw from the CCTV that the patient was aggressive and threatening;
- there were staff and members of the public in the ED, potentially in harm’s way; and
- from Mr Williams’ comment (“It’s that [patient’s name] dude”) Mr Harvey at least knew that the patient was known to security staff.[11]
- [29]Of significance are, as Mr Harvey submits, the findings at paragraph [57] of the Vice-President’s judgment which appears in paragraph [18] of these Reasons, and the following paragraphs [58] and [59]:
- “[58]I accept the argument that much of the Applicant’s evidence refers to the behaviour of the Patient during the brief interaction and does not address the concerns of the Respondent in respect of the Applicant’s failure to consider de-escalation strategies before deploying his baton.
- [59]What can be gleaned from the evidence is that at the time of the deployment of the baton, the patient’s hand was by his side; whilst he made verbal threats, he made no attempt to act on the verbal threats or to advance on any of the security personal or others in the ED; he sought to retreat from the advancing security officers. Moreover, there is nothing in the evidence before the Commission to suggest that the patient made any attempt prior to the deployment of the baton to reach for a ‘concealed weapon’ or indeed, any weapon.” (footnotes omitted)
- [30]It is submitted by Mr Harvey that any assessment of the reasonableness of his actions in using his baton must be made in light of his knowledge of the patient’s actions before he and the other two security officers entered the ED.
- [31]Paragraph [47] refers to statements made by Mr Harvey during the investigation that he walked into the incident “blind”. That statement was made in an interview with an investigator, Christopher Bonner, on 8 April 2020.[12]
- [32]Mr Bonner asked Mr Harvey whether, before the security officers went into the ED, he discussed tactics with Mr V. He said that he did not and then this exchange occurred:[13]
“ | 467. | CB | No, you can see … | |
468. | AH | No, we just walked in there blind and all of a sudden it was like wow. | ||
469. | CB | Yeah you can see. | ||
470. | AH | And yeah. | ||
471. | CB | What does your training tell you? Are they different roles in, like a three, a three-man team, what, what, what does training tell you to do? Is there anything in particular? | ||
472. | AH | To try and do the old triangle thing, it’s a bit hard when they’re walking around though and, you’re in a dead-ends, dead-end room, pretty hard for the guys to get into that sort of position. In actual fact it’s, I suppose in 14 years I’ve been doing this you could probably say I’ve probably seen that happen a handful of times. | ||
473. | CB | Did you think about calling those people away? | ||
474 | AH | No that’s what I mean I wasn’t, I don’t know what, as I said when you jump through here, it gets to about where I drawn my baton is when I realise that the, he’s stopped and they’ve cut him off because until then I’m happily following and I’m not saying anything as you know, I’m following and I’m actually hoping that he just walks around, and if he goes around and goes out the front everyone in there is safe and then what happens out there is going to happen, hopefully it’s going to be nothing, he’s going to run down the road and buggar off but … | ||
475 | CB | My observation … | ||
476 | AH | … but when he’s stopped and, and the gesturing and that, that’s when I was like wow you know and that’s when I realised that the other guys had cut him off but … | ” |
(emphasis added)
- [33]It can be seen that after saying that he and the other security officers went in “blind”, Mr Harvey then went on to discuss the “dead ends” in the ED and how it was difficult for the security officers to properly position themselves.
- [34]A central issue in the case was whether security officers positioned themselves in such a way as to give the patient an exit from the ED. This issue is critical to Alleged Error 2 but is also relevant here.
- [35]Paragraph [47] is expressing a finding that Mr Harvey was familiar with the layout of the ED so he knew the physical parameters relevant to positioning himself and others so as to ensure the patient could exit the ED. This is made clear by paragraphs [45] and [46] of the judgment of the Vice-President:
- “[45]It is apparent from the evidence that the Applicant was aware of and understood the concept of a dynamic risk assessment, which required an ongoing assessment of circumstances relating to an incident as it progresses; has undergone significant training in his career with the Respondent; has undertaken training with respect to the Code of Conduct for Queensland Public Service and OVP training.
- [46]It is clear from the evidence before the Commission that prior to attending the ED waiting room at TPCH on 27 January 2020, the Applicant was familiar with the layout of the ED; was aware there is only one way in and one way out; was aware the triage area where staff were located is separated from the waiting room by a sheet of glass and was aware that there were other patients in the ED waiting room including a patient lying unconscious across the chairs.” (footnotes omitted)
- [36]The reference in paragraph [47] to not walking into the incident “blind” refers to the fact that Mr Harvey knew the layout of the ED. It is not referring to Mr Harvey’s knowledge of the behaviour of the patient.
- [37]There is therefore no valid criticism of the finding at paragraph [47] of the judgment. There is therefore no error in that respect which contributed to the finding at paragraph [57].
- [38]Mr O'Gorman submitted that paragraph [57] of the judgment highlighted the short time between the security officers entering the ED and Mr Harvey taking action with the baton. That, he submitted, squarely raised issues as to what knowledge Mr Harvey had of the patient’s behaviour before he (Mr Harvey) entered the ED. That, Mr O'Gorman submitted, would inform the reasonableness of Mr Harvey taking such quick action. Mr O'Gorman submitted that it was incumbent upon the Vice-President to consider Mr Harvey’s knowledge prior to entering into the ED and express reasons as to how that evidence was considered.
- [39]Although Mr Harvey did not know the patient, Mr Williams knew of the patient and informed Mr Harvey of that fact. However, neither played any part in Mr Harvey’s thinking.
- [40]At paragraph 8 of Mr V’s affidavit, Mr V says:
- “8.At approximately 2:20am, I was in the security office with Mr Harvey when he received a call to attend the ED to deal with an aggressive patient (Patient). Mr Harvey and I left the security room and headed towards the ED waiting room. I do not recall Mr Harvey providing me further information about the Patient or the callout.”[14]
- [41]In Mr Harvey’s interview with Mr Bonner, this exchange occurred about the patient’s prior involvement with hospital staff:
“ | 421. | CB | So, when this incident took place were you aware of this previous modus operandi? | |
422. | AH | No. | ||
423. | CB | This come out later on that he’s a person, so you’re, you’re basically just going on what you see there and then at the tme. | ||
424. | AH | Pretty much. He’s a fairly, fairly good-sized guy, it’s not like he’s little. Two chaps I’m with are way smaller than him and of course I’m not in much of a shape, well certainly not on that night when I was in AF at the time to be able to do much physical stuff. Whether that had a bearing on me pulling my baton I don’t know, I’d like to think not but yeah I was just, just his demeanour, just everything about what he was gesturing and … | ” |
- [42]In his cross-examination before the Commission, Mr Harvey said this:
“And when – you said that during that call you looked at the CCTV camera? --- Yes.
And you saw the patient on the CCTV that we’re here talking about today, the aggressive male? --- Yes.
Yep. And you didn’t recognise that male?...No.
You hadn’t seen him before?---Not that I noticed at that time.
Didn’t know who he was?---Not at that time, no.
And you didn’t know his name?---No”
- [43]Mr O'Gorman’s point is that, even if the patient was not known to Mr Harvey, prior knowledge of violence gained through watching the CCTV prior to Mr Harvey entering the ED is relevant to the time required for assessment of the necessity to use the baton.
- [44]In his first affidavit, Mr Harvey explained his actions as follows:
“The Incident
- I recall this incident vividly because this is the first time in 14 years that I have used my baton.
- On 27 January 2020, at or about 2:20am, I received a phone call from staff at Triage, the Emergency Department of The Prince Charles Hospital. I received the phone call in my office where I was able to view the Incident from the Closed-Circuit Television Video footage (CCTV) while receiving the call. I could tell from her voice that the lady calling me was very distressed which suggested to me that this was urgent.
- During this phone call, I was informed of the following:
a. there was a large man in the Emergency Department waiting room who was yelling and behaving aggressively towards staff (the Patient);
b. the Patient was hostile, insubordinate towards staff and recklessly swinging a chair in the direction of staff; and
c. security was required to attend the scene immediately and de-escalate the situation.
- While taking this call, I was watching the CCTV of the Emergency Waiting Room and saw that the Patient was wielding a chair and was using it as a weapon to threaten the staff at the triage desk.
- I could also see four other patients in the waiting room (the Witnesses) and another, who appeared to be a woman, who was lying unconscious across the chairs and did not move. The Witnesses were visibly distressed and moving towards the end of the waiting room to distance themselves from the danger.
- I, along with my two colleagues, attended the scene as soon as possible after receiving the phone call from the triage staff. The lady on the phone was distressed and created a sense of urgency about the situation, hence we rushed to the waiting room to prevent the Patient causing any harm.
- Upon arrival, the Patient said to me and the two other security officers words to the effect of, “Come on boys, let’s go cunt. Let’s fucking go!”. He was very agitated and volatile, [redacted text]. The Patient was acting in a way that made me believe he may have been intoxicated with some unknown substance.
- The Patient then moved towards the Witnesses in the corner of the waiting room, while continuing to make threats and acting erratically. I also noticed something in the Patient’s back pocket which resembled the shape of a knife. I genuinely believed this to be a weapon and he certainly seemed capable of using it at a moment’s notice. From my experience, the longer you allow sporadic people to act, the more dangerous they become. I was concerned as the Patient was nearing the Witnesses while still threatening to attack and had what appeared to be a knife in his back pocket.
- I was also concerned about one patient who was seemingly unconscious, lying across the chairs. This patient was completely covered in blanket and did not move during the entirety of this incident. [redacted text]
- I became increasingly concerned with the Patient’s close proximity to staff and the Witnesses and I therefore:
a. slowly moved towards the Patient to the corner of the waiting room in an attempt to usher the Patient away from the Witnesses;
b. told the Patient, “get down” after the Patient had said, “I’ll fuckin come out swinging”, with the intention of placing hand-cuffs on the Patient until the Queensland Police Service (QPS) in order to remove all potential for danger and risk to other staff and the Witnesses;
c. struck the Patient three times on his left thigh with an extended metal baton; and
d. together with the other security officers, secured hand-cuffs on the Patient and propped the Patient up in a comfortable position while awaiting the arrival of the QPS.
- At all times, I:
a. perceived the Patient to be a genuine, serious and imminent risk towards the Witnesses and other staff;
b. attempted to de-escalate the situation before using force and used non-threatening body language;
c. Identified an object concealed in the back of the Patient’s pants under his underwear, which I reasonably believed to be a knife or other potential weapon; and
d. only used my baton for the purpose of self-defence and aiding in defence of others who, in my reasonable belief, could have been subjected to a sporadic and violent attack from a man who is known to the Hospital for his violence and aggression.”
- [45]It is clear from the affidavit that Mr Harvey watched the CCTV footage and knew he was entering a situation where the patient was aggressive and violent and there were other people present in the ED who could be injured by him.
- [46]However, on any fair reading of the affidavit, the reasons Mr Harvey offers as justification for using the baton is what he perceived to be the imminence of serious harm to those in the ED. The assessment of imminence of harm was clearly based on what he saw once he had arrived at the ED, namely:
- the patient saying to the security officers “Come on boys, lets go cunt. Let’s fucking go”;[15]
- Mr Harvey’s assessment that the patient was intoxicated with some substance;[16]
- the patient moving towards witnesses;[17] and
- Mr Harvey seeing what he thought was a weapon, probably a knife, in the patient’s pocket.[18]
- [47]In paragraph [57] of the judgment, one of the concerns expressed by the Vice-President was that alternative de-escalation options were not considered by Mr Harvey[19] and that is the point of the findings at [58] and [59], which are set out at paragraph [29] of these Reasons.
- [48]It is clear from the Reasons of the Vice-President that any threat posed by the patient was not such as to warrant virtually immediate physical intervention before considering alternative de-escalation options. It was not necessary in the circumstances of this case for the Commission to deal specifically with the evidence that Mr Harvey saw the patient misbehaving on CCTV before he entered the ED.
- [49]Alleged Error 1 has no substance.
Alleged Error 2: Mr Harvey blocked the exit of the patient
- [50]It was common ground that when faced with the situation where a person is potentially violent, security officers should not block the aggressive person’s exit from the scene. In other words, if the patient here could simply walk out of the ED then the situation has been diffused.[20]
- [51]In that context, Mr Harvey complains about the finding made by the Vice-President at paragraph [48] of the judgment. The finding complained about is:
“… The decision of the Applicant to follow the Patient down the left side of the ED waiting room created a situation where the Patient had no viable option of egress or exit. Equally, the Applicant made no attempts to reposition himself to rectify this situation and gave no directions to either Mr V or Mr Williams to re-position themselves.”
- [52]Mr Harvey’s case is that it was not he who was blocking the patient’s exit but it was Mr V.
- [53]In support of this ground, Mr Harvey relied on evidence from various witnesses who gave evidence by reference to a diagram, which was Exhibit 5 before the Commission. The diagram is reproduced as follows:
![Harvey v State of Queensland (Queensland Health) [2024] ICQ 10](/judgmentview/image?name=361616.001.png&id=361616)
- [54]The diagram shows the ED. The entrance is at the top right-hand corner as one looks at the diagram. Persons entering the ED encounter a central sitting area, where there are two long bench seats with a gap between them.
- [55]Marked on Exhibit 5 are the letters “A”, “B” and “C”. These depict: “A” Mr Harvey; “B” the patient; and “C” Mr V.
- [56]Mr Harvey relies on evidence given by Mr Drummond. Mr Drummond was shown the CCTV footage of the incident and then asked a series of questions in cross-examination. The relevance of his answers may be very limited as it is the opinion of the tribunal of fact which is relevant as to what is shown in the footage, not a witness who was not present during the incident.[21] In any event he said:
“So from your watching the footage, you would recall that [the Patient] walked from point A to point B. Do you recall that?---Yes.
You’d agree with me, wouldn’t you, that having walked from point A to point B, if he’d continued walking, he would have exited at point C? Do you agree with that?---Yeah.
So you’d agree with me, wouldn’t you, that if there was a security officer standing at or near point C, they would be blocking [the Patient]’s exit, wouldn’t they?---Yeah.
You’d also agree with me, wouldn’t you, that it wasn’t Mr Harvey standing at or near point C, was it?---I agree.
So it wasn’t Mr Harvey that was blocking [the patient] in, was it?---No. Well – though the patient was actually backing back around from A to B; right.
You’d agree with me, wouldn’t you, that Mr Harvey was trained to keep following a patient if they’re backing up, so that the patient keeps moving and exits the area? That’s right, isn’t it?---Yeah, absolutely.”[22]
- [57]The cross-examiner established that Mr Harvey followed the patient who was backing towards the rear of the waiting area.
- [58]As a matter of common sense, a person in the position of the patient standing near the central seating area could reach the exit by walking along either side of the central seats. If security officers were standing in one but not both of those aisles, then the aisle in which they were standing would be blocked but the person’s exit would not be blocked entirely because the other aisle would be open.
- [59]The CCTV footage shows that as the security officers entered the ED, Mr V is walking in front of Mr Harvey. The patient retreats as Mr V walks down the right-hand aisle with Mr Harvey following him to a point in front of the central seats. By this stage the patient is in the left-hand aisle, roughly adjacent to the gap between the two central seats.
- [60]There would be no difficulty in Mr Harvey continuing to follow Mr V down the right-hand aisle, leaving the patient clear passage along the left-hand aisle to exit the ED.
- [61]However, Mr Harvey then entered the left aisle, thus trapping the patient. The patient then retreated to the back wall while Mr V advanced down the right aisle and Mr Harvey the left. It is at this stage that Mr Harvey draws his baton and assaults the patient.
- [62]The conclusions drawn by the Vice-President were not only open but inevitable given Mr Harvey’s cross-examination:
“MS A-KHAVARI: So Mr Harvey, in front of you is a video that’s been set up. I will play, sort of, 40 to 50 seconds of it, and just stop that, and then I’ll ask you some questions in relation to it.
RECORDING PLAYED
MS A-KHAVARI: So when you entered into the waiting area, I asked you the question before that you were moving towards, the patient was moving away?---Yes.
I suggest that, as you were moving - once you came around the bend of the waiting area, if you look in front of you, where the patient’s standing, that’s what I mean by the bend?---Yes.
That --- the patient continues to move backwards?---Yes.
And you pause, and Maurice takes the lead?---Verbally, yes.
I’d say in physical position, Maurice ---?---While I put the chair to that side. --- goes in front of you?—Yes.
And that was because you were moving a chair ---?---Yes.
---to your left. So Maurice is then in front of you?---Yes, briefly.
And Maurice --- so for the portion that I just showed you ---?---Yes.
---I would suggest to you that Maurice was in front of you ---?---Yes,
---for that entirety of that video footage?---By the look of that. It looks that way.
Would you like to watch it again, or ---?---No, no, no. It’s — yeah, just ---
He was in the lead?---Yeah, looks like it, yeah.
Yep. And you’d agree that you saw where Maurice was in the room in that footage that I just — once you got into the waiting space, that you’ve looked up and seen that Maurice was in the lead?---It appears so, yes.
And then, you’ve seen that Maurice has gone to the right?---I think he’s stopped. That’s where he stopped, wasn’t it.
But you’ve seen that he’s gone — he’s made ---?---Yes, his initial---
--- an election to go to the right where he’s in the lead?---Yeah.
And you’ve made an election — you’ve elected to go to the left?---Yes.
When you elected to go to the left, and you saw, when you did that, where Maurice was located, you knew at that time that there were patients at the end of the waiting area?---Yes, you could see them, yes.
And you knew that there was a person, he or she, lying on the chair?---Yes.
And even though Maurice had gone to the right and was taking the lead, you elected to go to the left?---Yes.
The patient was then coming — sorry, if I ask you to just---
RECORDING PLAYED
MS A-KHAVARI: So you could see there that the patient has gone through the chairs?---Yes.
Your Honour, do you mind if I sit, just for the convenience of ---
HIS HONOUR: No, no. That’s fine, no worries.
MS A-KHAVARI: Yep. And you see there that the patient has gone through the chairs?---Yes.
Yes. And you’ve said before that Maurice has come to a stop?---I believed he did, yes.
And you’ve still elected to go to the left?---Yes.
And do you see there that the patient is starting to move back down towards you?---He’s moving away there.
Let me just — sorry, beg your pardon. Let me find you the ---
RECORDING PLAYED
MS A-KHAVARI: See how he’s coming back down as if to come down back towards out?---Well, he’s gone over to that table.
Did you see, as he was moving, he gestured around the chairs to come back down the left hand side, around the same time that you elect — so let’s just deal with that, first. He’s starting to move through that gap to come back down and out?---Was he?
I’m asking you that question?---I don’t believe so. I believe he moved over.
So let me show you — let me show you.
RECORDING PLAYED
MS A-KHAVARI: So he’s there?---Yes.
Can you see him at the end of the thing there. See, he’s starting to move, his body language is to move - is moving towards the table?---Yes.
And he’s coming down, he moves down further and says, “Nurse”?--Yep.
MR O'BRIEN; Your Honour, I’m just concerned — I wasn’t sure whether my learned friend is putting that he was calming down or he was coming down.
MS A-KHAVARI: Coming down.
HIS HONOUR: Coming down, I thought.
MS A-KHAVARI; As in starting to move back down to the left hand side. He hasn’t sought to go down towards the patients, he’s turned to come back down the left hand side?---No, I got from that — because as he stepped around — through those chairs there, he points and says that I’ve got a desk here.
And do you see at that point that you have made a conscious choice to go to the left?---Yes.
And then, do you see how he responds at that moment to your presence?---Yes.
So he turns because you have entered?---Yes.
And you know in doing that that you have an officer on the right hand side?---Yes, I don’t remember him being that far forward though.
And you know---?---Like, my time in the situation, I was concentrating on ---
But your movement is causing the patient, at that moment, to move back?---Yes.
And you know that you’ve got an officer to your right hand side?--- [indistinct] yes.
And so, I put it to you that you knew that you were, in effect, trapping the patient in that situation?---Not until I’d drawn the baton and realised that both Ken and Maurice were on that side, and he said he was going to come out swinging.
Well, I suggest to you that, at that moment, you see that he’s starting to move backwards, and still you continue down that path?---Well, that’s what I’ve ---
See, you continue?---Yes, that’s what I’ve been trained to do, though. Follow them around so they can exit.
Even if you know — you have full knowledge that the exit that you’re referring to has been blocked by another officer?---At the time, I did not realise they were there.
But I just asked you before, and you said that you acknowledged that you did know he was there?---Yes, you can see that he was there, and I can see that on camera, so there’s no point me saying that I — that he wasn’t. That I’m saying is it didn’t register to me at the time, because my concentration levels were on the patient in question.
But, Mr Harvey, that’s just not the case, because your whole face is pointing directly towards Maurice. I can show you on the footage?---I saw that too.
So you can’t not have registered that there was another — you’re trained to work in a team. You can’t possibly have not known that your other officer was on the other side blocking the entry — the exit?--- At that particular stage there, unfortunately, yeah. I didn’t recognise or acknowledge that with my mind.
But it’s your job as a senior officer, is it not, to recognise those things, to be aware of where your---?---To the best of my ability, but I’m not perfect.
I accept that, Mr Harvey. But what I’m suggesting to you, in a situation like this where you’ve got knowledge — pre-knowledge of patients and staff being in that situation, that you have elected to walk and to effectively trap him in the back of the waiting area?---That was not my intention.”
- [63]As can be seen, Mr Harvey accepts that he has trapped the patient at the back of the ED.
- [64]There is no substance in Alleged Error 2.
Alleged Error 3: The findings about the alleged knife were wrong
- [65]In his evidence before the Commission, Mr Harvey said that the patient had a bulge in his pants which was the shape of a knife. That evidence appeared in Mr Harvey’s first affidavit and he was cross-examined on the topic. It was said that was one of the reasons why the baton was deployed by him.
- [66]Of this evidence, the Vice-President found:
“[41] The presence of a knife was said to be a significant factor in the Applicant’s decision to deploy the baton. In those circumstances, it seems inconceivable that such an important detail would have not been recorded in his incident report; mentioned to Mr Rogers during their discussion on 30 January 2020; raised during the investigation; or formed part of his responses during the disciplinary process. The presence of a knife, as opposed to a bulge in the Patient’s pants, was only raised as part of these proceedings.”
- [67]Mr Harvey submits that paragraph [41] of the judgment is effectively a finding of recent invention of the belief of the presence of the knife.
- [68]It is common ground that when police were escorting the patient from the ED, Mr Harvey said “He’s got something down the back of his pants. Don’t know what it is.”
- [69]
“Do you agree that during one of those conversations you asked me to concentrate on body camera footage of the incident and in particular footage of police searching the patient and removing an item from his back pocket? – back of his waistband actually.
Waistband okay. – Yeah it was his waistband yeah.
Alright. Okay alright. – And I believe I said to the police because I didn’t want to contaminate any evidence if it was a weapon.”
- [70]There is nothing in the CCTV footage to suggest that Mr Harvey saw a knife shaped object in the patient’s pants or waistband before he struck him with the baton. At one stage, the patient turns his back on Mr Harvey and the CCTV footage shows some red object above the waistband of the patient’s shorts.
- [71]What is critical is the possibility that Mr Harvey, before the assault with the baton:
- saw the bulge;
- believed it was a knife; and
- acted upon that belief.
- [72]None of those things are mentioned by Mr Harvey to investigators or in his show cause responses. The first mention is in his first affidavit sworn in the proceedings in the Commission. It follows that there are no factual errors within paragraph [41] of the judgment and the conclusions as to credit which were drawn were clearly open.
- [73]Further, the CCTV footage shows that once the patient was restrained, Mr Harvey told him that he would not tolerate his officers being assaulted. There is no mention of a knife. When the patient is being led away, Mr Harvey points out the bulge but then says “Don’t know what it is”. It is frankly inconceivable that if Mr Harvey, a security officer of his experience, thought that there was a possibility that the patient, then in police custody, had on his person a concealed weapon of the nature of a knife, that he would not alert the police specifically to that possibility.
- [74]Complaint is also made about paragraph [59] which is set out at paragraph [29] of these Reasons. There, it is said that there was no evidence that the patient reached for “a concealed weapon or indeed any weapon”. It is said that is a factual error given that it was common ground that the patient used a chair as a weapon. On any fair reading of paragraph [59] in the context of the judgment as a whole, the Vice-President is referring to the passage in time approximate to when Mr Harvey draws his baton. By that point, the patient had retreated to the back area of the ED. He was not then in possession of the chair. He was not using the chair as a weapon, and as the Vice-President found, he made no attempt “to reach for a concealed weapon or indeed any weapon”.
- [75]There is no substance to Alleged Error 3.
Conclusions
- [76]The CCTV footage shows that Mr Harvey walked down the left aisle of the seating area in the ED, made no attempt to negotiate with the patient but immediately drew his baton, directed the patient to get down and almost simultaneously attacked the patient by delivering three blows of the baton.
- [77]A finding, in those circumstances, that Mr Harvey’s dismissal was not unreasonable was almost inevitable.
- [78]Mr Harvey’s challenge to the judgment was based on three factual findings, which he said to be erroneous. He has failed to make out any of those errors and so the appeal is dismissed.
- [79]The parties are content for costs to be dealt with on written submissions. Provision should be made for application to the court for leave to make oral submissions after written submissions are filed and served.
Orders
- [80]The following orders are made:
- The appeal is dismissed.
- By 4.00pm on 14 May 2024 the respondent shall file and serve written submissions on costs.
- By 4.00pm on 21 May 2024 the appellant shall file and serve written submissions on costs in reply to the respondent’s submissions.
- Each party may file and serve an application in existing proceedings to make oral submissions on costs by 4.00pm on 28 May 2024.
- In the absence of any application to make oral submissions being filed by 4.00pm on 28 May 2024 the question of costs will be dealt with on the papers without oral submissions.
Footnotes
[1]Harvey v State of Queensland (Qld Health) [2023] QIRC 295.
[2]Industrial Relations Act 2016, ss 316, 317, 318, 319, 320.
[3]Public Service Act 2008, ss 187, 188, now repealed.
[4]Harvey v State of Queensland (Queensland Health) [2023] QIRC 295.
[5]Industrial Relations Act 2016, s 564(2).
[6]Industrial Relations Act 2016, s 557(1).
[7]See generally Porche v State of Queensland (Department of Education) [2022] ICQ 3 at [6]-[7]; and Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 10 at [32]-[33].
[8]Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2) (1995) 61 IR 455 at 479.
[9]Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395; O'Sullivan v Farrer (1989) 168 CLR 210 at 216; and Henning v State of Queensland (Queensland Treasury) [2023] ICQ 9 at [13].
[10]Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43].
[11]Mr Harvey’s first affidavit dated 22 November 2021 at paragraphs [8], [9] and [10]; his interview of 8 April 2020 at 144; and evidence of nursing staff.
[12]Commencing 1.12pm.
[13]Interview Transcript: Alistair Harvey 8 April 2020, pages 34-35.
[14]Affidavit of Maurus V executed 21 December 2021, page 2.
[15]Mr Harvey’s first affidavit dated 22 November 2021, paragraph 13.
[16]Affidavit, paragraph 13.
[17]Affidavit, paragraph 14.
[18]Affidavit, paragraph 14.
[19]At [57].
[20]See Mr Harvey’s comments at paragraph [32] of these Reasons.
[21]Smith v The Queen (2001) 206 CLR 650 at [11].
[22]See also the evidence of Mr King at Transcript 4-55 and James Duffield in his affidavit at [16].
[23]At questions [49]–[56].