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- Unreported Judgment
 QIRC 79
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
The Australian Workers' Union of Employees, Queensland v Metro North Hospital and Health Service  QIRC 079
The Australian Workers' Union of Employees, Queensland
Metro North Hospital and Health Service
Application for reinstatement
3 June 2020
9 September 2019
10 September 2019
11 September 2019
16 October 2019 (Applicant's Submissions)
7 November 2019 (Respondent's Submissions)
19 November 2019 (Applicant's Submissions in Reply)
The application is dismissed.
INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Applicant's member employed as Protective Services Officer -discipline procedure commenced 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 allegations can be substantiated - whether conduct is misconduct - whether conduct contravened Code of Conduct - whether dismissal harsh, unjust or unreasonable - whether employee was warned – dismissal not harsh, unjust or unreasonable - application dismissed
Industrial Relations Act 2016 (Qld) ss 316, 317, 320
Public Service Act 2008 (Qld) s 187
Bostik (Australia) Pty Ltd v Geogevski (No 1) 36 FCR 20
Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914
The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service  QIRC 067
Wang and Crestell Industries Pty Ltd (1997) 73 IR 454
Mr A Santelises, agent for the applicant
Mr E Shorten of Counsel, instructed by Crown Law for the respondent
Reasons for Decision
- Mr Andrew McGrath, a Security Officer at the Caboolture Hospital, was dismissed from his employment following a disciplinary investigation and show cause process.
- At the conclusion of the disciplinary process, the Metro North Hospital and Health Service (MNHHS) determined Mr McGrath had engaged in unjustified and excessive force against two hospital patients while undertaking his duties.
- In respect of his actions involving the two patients, Mr McGrath's employer determined he was guilty of misconduct, pursuant to section 187(1)(b) of the Public Service Act 2008 (the PS Act).
- It was also found, in both incidents, that Mr McGrath failed to comply with training practices, by using inappropriate physical restraints and causing unnecessary pain and discomfort to the patients. A further allegation of swearing at a patient was also substantiated.
- Mr McGrath's employer contends he also contravened, without reasonable excuse, a standard of conduct under the Code of Conduct for the Queensland Public Service (Code of Conduct), namely:
- Principle 1 – Integrity and Impartiality. 1.5 Demonstrate a high standard of workplace behaviour and personal conduct, when he failed to treat a patient with respect when he called him a 'fucking piece of shit' in a setting where the patient, police and other staff were present; and
- Principle 3 – Commitment to the System of Government, 3.1 Commit to our roles in the public service, when he failed to adhere to Occupational Violence Prevention (OVP) training and requirements.
- Other than the swearing incident, where Mr McGrath concedes he swore at a patient, calling him a 'fucking piece of shit', he refutes the disciplinary findings and argues the decision to terminate his employment was harsh, unjust or unreasonable.
- In terms of a remedy, Mr McGrath is seeking reinstatement to his former position and the payment of any lost remuneration from the date of his dismissal. In the alternative, he is seeking the Commission make an order that his employer pay him an amount of compensation.
Onus of proof
- The principles governing unfair dismissal applications are well established. This is not a case where the applicant was summarily dismissed for misconduct after engaging in criminal activity.
- Mr McGrath was dismissed after it was determined that he: (1) engaged in misconduct pursuant to section 187(1)(b) of the PS Act; and (2) contravened the Code of Conduct. On the cessation of his employment, Mr McGrath was paid an amount in lieu of notice.
- In this proceeding, Mr McGrath carries the burden of establishing his dismissal was unfair, unjust or unreasonable.
The Legislative Scheme
- A dismissal will be unfair if the Commission determines it is harsh, unjust or unreasonable. Relevant to any determination, are the circumstances which led to the decision to dismiss, along with the effect on the employer and the individual employee.
- The matters which this Commission must consider when deciding whether a dismissal was unfair are set out in s 320 of the Industrial Relations Act 2016 (Qld) (IR Act) as follows:
320 Matters to be considered in deciding an application
In deciding whether a dismissal as harsh, unjust or unreasonable, the commission must consider:
(a) whether the employee was notified of the reason for dismissal; and
(b) whether the dismissal related to—
(i) the operational requirement of the employer's undertaking, establishment or service; or
(ii) the employee's conduct, capacity or performance; and
(c) if the dismissal relates to the employee's conduct, capacity or performance -
(i) whether the employee had been warned about the conduct, capacity or performance; or
(ii) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and
(d) any other matters the commission considers relevant.
- When considering those matters, the Commission is also required to determine not only whether the allegations made in respect of Mr McGrath are capable of being substantiated on the balance of probabilities but also whether, once substantiated, the allegations satisfy the definition of misconduct set out at section 187(1)(b) of the PS Act.
- Likewise, consideration must be given to whether Mr McGrath has contravened, as claimed by his employer, the relevant standards of conduct under the Code of Conduct, without a reasonable excuse.
- The AWU, on behalf of Mr McGrath, argues his dismissal was harsh, unjust or unreasonable for reasons including:
- the disciplinary action was disproportionate to the alleged conduct;
- the dismissal was not for a reason that could withstand scrutiny;
- there was insufficient evidence for the MNHHS to justify the dismissal on the 'balance of probabilities, considering the mitigating factors'; and
- the adverse 'social and economic consequences' of the dismissal for Mr McGrath.
- Mr McGrath's employer maintains his dismissal was not harsh, unjust or unreasonable, in circumstances where:
- the allegations against Mr McGrath were substantiated and were a valid reason for dismissal;
- the process was procedurally fair (which included Mr McGrath being notified of the reason for his dismissal);
- the dismissal was directly related to Mr McGrath's conduct and he had been warned about the conduct to which the dismissal related;
- dismissal was proportionate disciplinary action in the circumstances; and
- there were insufficient 'mitigating factors' or 'social and economic consequences' to countervail matters weighing in favour of dismissal.
- During the proceedings, Mr McGrath's representative confirmed no issue was being taken by the Applicant in respect of the show cause process undertaken by MNHHS prior to his dismissal. Therefore, the remaining issues the Commission must consider are:
- Is the evidence of Mr McGrath and other key witnesses credible?
- Are the allegations which led to Mr McGrath's dismissal able to be substantiated?
- If so, do they satisfy the definition of misconduct under the PS Act?
- Was Mr McGrath provided with an opportunity to respond to the allegations about his conduct?
- Was Mr McGrath notified of the reason for dismissal?
- Was Mr McGrath warned about his conduct?
- Are there any other relevant matters the Commission should consider?
- Was Mr McGrath's dismissal harsh, unjust or unreasonable?
Credibility of Key Witnesses
- During the proceedings I had the opportunity to listen to and observe the witnesses under cross-examination, which was of some assistance when assessing credibility. As the hearing unfolded, the reliability of Mr McGrath's evidence increasingly became an issue.
- In response to questions predominantly related to his actions during the patient incidents (which formed the basis for the disciplinary process and his eventual dismissal), I observed, at times, an unwillingness on Mr McGrath's part to make simple concessions and answer relatively straightforward questions.
- After reviewing the initial show-cause response, Mr McGrath's affidavit and the transcript of the proceedings, it is clear there were occasions where he provided inconsistent accounts or explanations about his interaction with the two patients at the time of the incidents.
- Mr McGrath's responses to questions about the patient incidents and his actions during those events, were, at times, patently contrary to the video evidence before the Commission. At different stages during the proceedings I also observed Mr McGrath retreat from evidence he had previously provided to the Commission.
- I have therefore approached Mr McGrath's evidence with some caution.
- I have found the evidence of Mr Trudgett, the MNHHS Occupational, Violence Prevention Coordinator to be straightforward and objective. In my view, he gave credible evidence. I accept Mr Trudgett's evidence where it contrasts with the evidence of Mr McGrath.
- Of the remaining witnesses, for both Mr McGrath and the Respondent, I consider they were credible. I accept their evidence where it contrasts with the evidence of Mr McGrath.
Are the allegations which led to Mr McGrath's dismissal able to be substantiated?
- The four allegations which were substantiated and formed the basis for Mr McGrath's eventual dismissal were:
- Allegation One:
That on 19 January 2018, Mr McGrath used unnecessary, unjustified and/or excessive force during the physical restraint of patient UR C042017 (the Green Whistle Event);
- Allegation Two:
That on 19 January 2018 at the entrance to the Emergency Department (ED) of Caboolture Hospital, Mr McGrath failed to treat patient UR C042017 with respect when he called him a "fucking piece of shit" in a setting where, the patient, Police, other staff and members of the public were within hearing range.
- Allegation Three:
On 19 May 2018, Mr McGrath used unnecessary, unjustified and excessive force during a physical restraint of patient UR C007903 in the Mental Health Interview Room, Emergency Department, Caboolture Hospital (the Mental Health Event).
- Allegation Four:
It is alleged that during the incidents on 19 January 2018 and 19 May 2018, Mr McGrath failed to comply with the Metro North Occupational Violence Prevention (OVP) training practices and requirements when he used inappropriate physical restraints on Patient UR C042017 and Patient UR C007903.
The Green Whistle Event: Allegations One, Two and Four
- The particulars of the Green Whistle Event were relevantly summarised in Ms Nasato's first show cause letter of 22 June 2018. It was alleged Mr McGrath used unnecessary, unjustified and/or excessive force during the physical restraint of patient UR C042017 on 19 January 2018.
- During that event, the MNHHS also maintain Mr McGrath failed to treat the patient with respect when he called him a 'fucking piece of shit'. Further, that Mr McGrath did not comply with the relevant OVP training practices and requirements when he used physical restraints which resulted in unnecessary pain and discomfort for the patient.
- On 19 January 2018, Mr McGrath and two other Security Officers, Mr Troy Pamenter and Mr Jack Huntingford, were called to the ED of the Caboolture Hospital to assist with managing patient UR C042017.
- During an attempted examination, patient UR C042017 was requested to release a Penthrox inhaler used for pain relief (referred to as a "green whistle") by Ms Rachelle Starr, a Physiotherapist based in the ED.
- The patient refused to release the whistle and was being difficult. Ms Starr requested Security attend the ED. The patient later formally complained to the Health Service about the way he was treated during an incident with the Protective Service Officers (PSOs), which included Mr McGrath.
- CCTV and body worn camera footage from Mr Pamenter and Mr Huntingford that recorded the date and time of the incident was recovered and reviewed by representatives from MNHHS. There was no body worn camera footage available from Mr McGrath because he did not activate his device during this incident. Mr McGrath's evidence was that he did attempt to turn on his body worn camera during the relevant event, but it did not operate properly. It is unclear on the evidence as to whether this is the case, or not.
- After reviewing documentation, and available CCTV and body worn camera footage related to the incident, MNHHS alleged in show cause correspondence dated 22 June 2018, that Mr McGrath took the lead in negotiating with the patient, forcibly removing the green whistle, which resulted in the patient being immediately restrained in an arm restraint, and then unnecessarily taken to the floor by Mr McGrath and another security officer.
- It is alleged these actions resulted in the patient hitting his face on the corner of a steel trolley, sustaining an injury to the mouth region.
- MNHHS maintains Mr McGrath also knelt on the patient's shoulder/back area with what appears to be full body weight in the patient's "window of safety", when the patient was lying face down in the floor. Further, that the patient was observed to cry out while being restrained by Mr McGrath and the other Security Officer and spit on the floor.
- Eventually, the patient was handcuffed and escorted out of the Emergency Department by Mr McGrath and a police officer who had been present in the ED at the time of the incident. The MNHHS maintains that while the patient was being removed from the hospital, Mr McGrath appeared to hyperextend the patient's arms vertically, causing him pain.
- It is further claimed that when transporting the patient outside, Mr McGrath unnecessarily twisted the wrist of the patient.
- The available camera footage was reviewed by Mr Scott Trudgett, Occupational Violence Prevention Coordinator, MNHHS, who compiled the initial review and report.
- Mr Trudgett gave evidence during the unfair dismissal proceedings.
- He told the Commission he was responsible for the training and incident reviews relating to occupational violence, including risk assessments for workplaces. Mr Trudgett explained that it was not uncommon for him to prepare OVP reviews where a concern arose in respect of patient or staff safety, or where a review was requested by Human Resource staff.
- Mr Trudgett stated that he took into account a range of factors when preparing an OVP review, including the conduct of the patient, the reason they were at the hospital, what information was known to the security officers at the time and whether a handover had taken place.
- In his report, Mr Trudgett highlighted several concerns in respect of Mr McGrath's OVP practices. Those concerns eventually formed the basis for the initial allegations against Mr McGrath. Included in the report was a reference to the patient's clinical notes which noted that he suffered from Aspergers, ADD, Klinefelter's Disease and a possible intellectual impairment.
- Mr Trudgett's review in respect of the Green Whistle Event, having considered the available footage, witness statements and security reports, noted:
- Mr McGrath should have taken the time to obtain further information about the patient's medical condition to put in place an appropriate plan and determine whether security intervention was appropriate;
- Mr McGrath should have determined a plan using the de-escalation strategies he had learnt through OVP training;
- The patient was not in imminent harm and nor was he about to cause imminent harm to anyone around him, which provided Mr McGrath with the opportunity and time to consider available de-escalation strategies;
- De-escalation techniques available to Mr McGrath included: disengagement with the patient, diversion, distraction or a change in environment;
- Mr McGrath's actions in attempting to snatch the whistle from the patient after one minute and forty seconds, was too hasty, was provocative and triggered reciprocal behaviour from the patient;
- It is not uncommon for security officers to be in difficult situations with high level physical interventions. Comparatively, this event was low level and a restraint was not warranted in the circumstances;
- Mr McGrath was observed kneeling on the patient in a way that was applying pressure to an area of his upper torso, which should not have any weight placed upon it during a physical restraint;
- Once the police attended the area, Mr McGrath should have withdrawn and allowed the police to transfer the patient outside. Instead, Mr McGrath continued to accompany the patient, resulting in an over extension of the patient's arm which contradicts OVP training.
- In the context of the Allegation 2 (that Mr McGrath failed to treat Patient UR C042017 with respect when he called him a 'fucking piece of shit'), a further circumstance was summarised in Ms Nasato's original show cause letter:
- Patient UR C042017 expressed concerns in a Patient Feedback Form dated 21 January 2018 that a Security Officer has called him 'a piece of shit';
- In a review of the body worn camera footage worn by Mr Huntingford you can be heard at 8 minutes 30 seconds of the recording stating clearly that Patient UR C042017 was 'a fucking piece of shit.'
Mr McGrath's response
- In written responses from the AWU, dated 5 August 2018 and 18 September 2018, it is conceded that Mr McGrath swore at the patient. The explanation was that the swearing took place at a stressful time, due to personal extenuating circumstances.
- In a subsequent show cause response dealing with a proposed penalty, the AWU noted Mr McGrath regretted his actions when he swore at the patient but did not consider he had sworn in front of the patient.
- In respect of the concerns raised in Ms Nasato's original show cause correspondence about Allegations 1 and 4, the AWU submitted:
- Mr McGrath recalled taking the lead and asking for the patient to hand over the green whistle;
- Mr McGrath was instructed by Ms Starr to remove the whistle as it 'inhibited the ability to perform an adequate assessment';
- Mr McGrath recalled the patient became aggressive and violent towards security officers and others in the ED. In response to concerns for his personal safety when the patient did not comply with instructions, he undertook a difficult restraint only using the necessary force he reasonably believed was necessary;
- That it was the patient who exerted force and removed himself from the chair, which resulted in him going to the ground;
- The patient was spitting blood at many of the staff who were present;
- The footage shows that Mr McGrath's leg or knee was tight up against the body consistent with OVP training; and
- The patient was aggressive enough for the QPS to be called.
- The AWU, on behalf of Mr McGrath, submitted the PSOs who were present at the time of the Green Whistle Event made a split-second call to undertake the restraint and bar hold in reaction to the aggression of the patient, and his continued use of the green whistle. It is claimed that Mr McGrath was seeking to prevent the patient from using the whistle, rather than restrain him.
- In cross-examination, Mr McGrath initially maintained this position, notwithstanding the CCTV footage indicating there was no discussion between the officers before the restraint and bar hold took place. Eventually Mr McGrath conceded that he did not consult with his colleagues prior to taking steps to restrain the patient.
- In other evidence, Mr McGrath said that he initially attempted to engage in a conversation with the patient to convince him to hand over the green whistle voluntarily. He recalled advising the patient that it could make him unwell if he kept using it. His evidence was that he spoke in a non-threatening, conversational manner.
- Mr McGrath continued to assert that the green whistle needed to be removed 'in order to prevent the patient from being sick' and in circumstances where a clinician directed Mr McGrath to remove the whistle.
- The evidence of Ms Nasato, an Executive Director with Clinical Support Services was that a subsequent report prepared by the attending physiotherapist, confirmed Mr McGrath was not directed to remove the green whistle. Ms Nasato's evidence was that the patient could suck on the green whistle as long as he liked, but that it was a controlled, limited dose of pain relief which eventually came to an end.
- Mr McGrath conceded in his evidence that he did not formulate a plan before snatching the whistle, in circumstances where he tried to grab the whistle from the patient less than two minutes after arriving in the ED. He acknowledged that he did not apply the de-escalation techniques he had been taught during his OVP training, which included leaving the environment or diverting the patient's attention.
- In cross-examination, Mr McGrath maintained his position that it was the patient that was escalating the situation, notwithstanding his efforts to keep things calm, but then later acknowledged the patient was being difficult before he arrived at the scene, which was why he was called to assist in the first place.
- Although Mr McGrath's initial response during the show cause process indicated he had concerns for his safety and that he had intervened in response to the patient's aggression, in cross-examination, he conceded the patient's aggression escalated after he had grabbed the green whistle from him, and that the patient was also looking away at the time Mr McGrath snatched the whistle.
- In his affidavit, Mr McGrath claimed that it was Mr Pamenter who removed the patient from his chair, which then led to the patient being physically restrained on the ground and accidentally hitting his mouth on the corner of a nearby metal trolley. Mr McGrath claims the patient continued to yell and swear.
- Later, in cross-examination, Mr McGrath altered his position somewhat contending it was the combined actions of both Mr Pamenter and the patient, that led to the patient falling to the floor. Mr McGrath was unwilling to accept his actions may have contributed to the patient falling to the floor.
- Mr McGrath's evidence to the Commission was that the patient continued to swear and argue with both he and Mr Pamenter while on the ground, at one point referring to his (the patient's) father and suggesting there would be consequences for the PSOs, in terms of retaining their jobs, if they did not let him go.
- In his final written submissions, Mr McGrath's position in respect of the chain of events was somewhat different again, with his representatives claiming he did not initiate the physical altercation with the patient, notwithstanding his earlier acknowledgement while giving evidence to the Commission, that he initiated a bar hold and restraint.
- In cross-examination, Mr McGrath initially maintained the position taken within his original show cause response that the patient was spitting blood at many of the staff, but then slightly retreated from this position, instead suggesting the patient was 'attempting' to spit. Separately, Mr McGrath continued to insist in cross-examination that he did not place his left knee on the patient's shoulder blade or 'window of safety'.
- In respect of MNHHS's concerns about the transport of the patient out of the hospital, Mr McGrath's evidence is that several police officers arrived in the ED. He acknowledged that he assisted QPS to transport the patient to the police and called the patient a 'fucking piece of shit' after assisting him into the police car. Mr McGrath noted that on reflection, he regretted making such a statement, and had previously apologised when responding to the allegations.
- The show cause correspondence submitted on behalf of Mr McGrath by the AWU initially did not respond directly to the MNHHS's concerns relating to the alleged hyper-extension of the patient's arms while Mr McGrath was escorting the patient from the hospital.
- Instead, his representatives highlighted Mr McGrath's assertion that the police officers thanked him for his assistance in removing the patient from the hospital. Subsequent correspondence noted he was mirroring the actions of the police officer standing on the other side of the patient.
- In cross-examination Mr McGrath acknowledged he had received handcuff and baton training. He appeared to understand that he was not to lift a patient's arms vertically but continued to deny he lifted the patient's restrained hands upwards.
- During the proceedings, the Commission had the benefit of observing the body worn camera footage from two other PSOs who were present at the incident - Mr Huntingford and Mr Pamenter, along with CCTV footage of the areas where the incidents took place.
- Collectively, over a period of approximately eight minutes, the footage included:
- A female staff member interacting with the patient and then walking away from the area;
- Mr McGrath attempting to grab a green whistle from the patient approximately one and half minutes after commencing his interaction with the patient;
- Mr McGrath placing pressure on the patient's right shoulder;
- The patient falling from the chair to the ground;
- The patient spitting on the floor, apparently injured in the mouth area;
- The patient screaming, swearing and yelling at Mr McGrath and the other PSOs;
- Mr McGrath restraining the patient, with assistance from other PSOs;
- Mr McGrath placing his knee on the patient's shoulder area;
- Mr McGrath and other PSOs reaching for protective glasses while the patient is restrained on the floor;
- Mr McGrath extending the patient's arms upwards after being handcuffed and while being transported;
- Mr McGrath twisting the patient's wrist downwards while escorting him out of the hospital;
- Mr McGrath calling the patient a 'fucking piece of shit' in a car park outside the hospital.
Are Allegations One, Two and Four, in so far as they relate to the Green Whistle Event able to be substantiated?
- In circumstances where the allegations against Mr McGrath predominantly relate to his non-conformity to OVP training policies and practices, and a failure to follow the Code of Conduct and the MN values, it is necessary to consider the OVP training he undertook, and closely examine the areas of alleged non-compliance in respect of those practices.
- The Situational Use of Force Model and the SELF Test protocol was a policy that applied to Mr McGrath's employment. Relevantly, it sets out:
Protective Services staff should bear in mind that all 'use of force' applications must be:
- (iv)legally defensible; and
- (v)tactically sound and effective.
Staff should also consider the following factors when selecting a 'use of force' option:
- (i)the physical attributes of the person concerned as opposed to the staff member;
- (ii)the circumstances and location of the incident;
- (iii)the possibility that the staff member may be required to increase or decrease the initial 'use of force' option as the situation changes;
- (iv)the possibility of injury to the staff member;
- (v)the possibility of injury to the person concerned;
- (vi)the possibility of injury to other persons;
- (vii)in the case of security officers, the requirement to act quickly and professionally (having made the decision to restrain) to prevent an escalation of an incident; and
- (vii)the requirement for decisions made by staff to satisfy the SELF Test.
The SELF Test
Scrutiny – Would your decision withstand scrutiny by the community or the MNHHS?
Ensure – compliance with the Code of Conduct for the Queensland Public Service and MNHHS policy?
Lawful – Does your decision comply with all laws, regulations and rules?
Fair – Is your decision fair to the community, your family, and colleagues?
- The MNHHS workplace values are reflected in the 'MN Values'. Relevantly, they provide:
"We treat everyone with courtesy, equity and fairness"
"Caring for our consumers and each other is at the heart of everything we do"
- Relevantly, the Code of Conduct also provides:
1.5 Demonstrate a high standard of workplace behaviour and personal conduct
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.
3.1 Commit to our roles in public service
Our role is to undertake our duties, and to give effect to the policies of the elected government, regardless of its political complexion.
- It became clear during the proceedings that Mr McGrath:
- (a)was aware of the particular provisions in the Situational Use of Force Model and the SELF Test and its effect at the relevant time;
- (b)was aware, throughout his employment, that he must turn on the recording function of his body worn camera prior to and during the exercising of a power under legislation or applying a use of force;
- (c)was aware of the 'MN Values';
- Mr Scott Trudgett, the Coordinator for Occupational Violence Prevention, for MNHHS is responsible for the overall provision of OVP mandatory training, reviewing violence risk assessments for all allied health services in MNHHS and completing incident reviews regarding staff and patient safety incidents.
- Mr Trudgett has over thirteen years of experience in Occupational Violence and Prevention and is also Queensland Health's representative in reviewing Standards Australia AS4485 – Security in Health Care Facilities.
- It is clear Mr Trudgett is an expert in occupational violence prevention, training and reviews. His evidence to the Commission in respect of the OVP processes that were followed by Mr McGrath was considered and direct. I have no reason to question the views contained in his review report and expressed during the unfair dismissal proceedings.
- I am unable to accept Mr McGrath's submissions in respect of the Green Whistle Event for several reasons.
- Although I accept the patient's retention of the green whistle was proving to be an issue for the attending physiotherapist, it is clear from the video footage that Mr McGrath was not directed by clinical staff to remove the whistle from the patient.
- The patient was being belligerent and difficult, but he was not being violent. Having viewed the body worn camera footage and other materials before the Commission, I am unable to accept Mr McGrath held genuine concerns for his own safety. Nor was the patient about to cause harm to anyone else around him.
- It appears there was limited, if any justification for Mr McGrath's use of physical restraint or force. The patient himself was also not in any imminent harm, in the period the PSOs initially attended the ED area.
- Instead, after arriving in the ED, there was both time and opportunity for Mr McGrath to consider other options available to him to de-escalate the behaviour of the patient, in accordance with the OVP training he had previously undertaken.
- I accept Mr McGrath took the lead in managing the patient. Notwithstanding his claims that the use of force was a collective decision on the part of the PSOs, the footage provided to the Commission indicates Mr McGrath did not consult or forewarn his colleagues and/or the clinical staff about how he was going to manage the situation.
- I am satisfied that the conduct of the patient did not warrant physical intervention and force within such a short time of Mr McGrath and his colleagues arriving in the ED.
- Although I consider there is insufficient evidence to determine whether Mr McGrath was directly responsible for pushing the patient out of his chair, I accept Mr Trudgett's opinion that had Mr McGrath undertaken the restraint correctly, or attempted to de-escalate the situation utilising other techniques he had been trained in, the patient would more than likely have remained in his chair, avoiding his subsequent mouth injury and the verbal retaliation and arrest that followed.
- The footage, in my view, indicates that while the patient was being restrained on the floor, Mr McGrath placed his knee on the patient's left shoulder notwithstanding he had previously been made aware, through his training, that he should avoid placing weight on a patient's torso, particularly given the propensity for such action to contribute to the death of a patient.
- The patient can be seen spitting on the floor, more than likely as a result of his mouth injury but he doesn't appear to be spitting directly at staff who were present, as claimed by Mr McGrath during the show cause process.
- Although Mr McGrath had previously undertaken handcuff and baton training, which explicitly highlighted the importance of not lifting a person's arms vertically, so as not to over-extend the shoulder, I am satisfied Mr McGrath extended the patient's arms upwards while transporting him out of the hospital. I accept the action was not in accordance with the OVP training Mr McGrath had previously undertaken.
- Despite his denials, the footage played during the proceedings shows Mr McGrath twisting the patient's wrist downward as he is being transported out of the hospital. At the time his wrist was twisted, the CCTV footage indicates the patient was physically restrained, with several police and security officers surrounding the patient. It is clear the situation was under control and it was not necessary for Mr McGrath to apply this pain technique at that time.
- Mr McGrath admitted to calling the patient 'a fucking piece of shit'. The footage shows Mr McGrath making the comment in a car park, in the presence of police officer and other staff, standing quite close to the vehicle where the patient was sitting.
- The evidence of Mr Trudgett in combination with the CCTV and body worn camera footage is far more compelling and credible than the account provided by Mr McGrath, both during the show cause process and during the proceedings, which I found to be inconsistent and at odds with more reliable evidence before the Commission.
- For these reasons, I am unable to accept the account provided by Mr McGrath in so far as it is related to the Green Whistle Event and Allegations One, Two and Four. Instead, I consider the allegations are able to be substantiated.
Do the substantiated allegations satisfy the definition of misconduct under the PS Act?
Has Mr McGrath contravened the Code of Conduct?
- The Respondent's case is that the substantiated allegations formed the basis of Mr McGrath's dismissal not only because he was guilty of misconduct, pursuant to s 187(1)(b) of the PS Act but also because he contravened s 187(1)(f)(ii) without reasonable excuse, breaching Clause 1.5 and 3.1 of the Code of Conduct.
- Mr McGrath's representatives argue the dismissal occurred 'for reasons that cannot withstand scrutiny'.
- Helpfully, Deputy President Merrell recently considered the definition of misconduct as it is currently set out in s 187 of the PS Act, observing:
 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.
 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.
 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.
- I am not persuaded that Mr McGrath's conduct in respect of the Green Whistle Event could be characterised as an error of judgement, an innocent mistake or mere negligence.
- Despite a long history of participation and, on his own evidence, a solid understanding of OVP training outcomes and requirements, the materials before the Commission support the conclusion that Mr McGrath actively departed from the fundamental tenets of the Health Intervention Model, the applicable protocols of the Situational Use of Force Model and the MNHHS Values during the Green Whistle Event, when he:
- Failed to consider and apply defusing techniques to de-escalate the situation, before resorting to physical intervention and restraints with the patient;
- Used an unreasonable level of force against a patient in circumstances where there was not a real and impending threat to the patient's life, his own life or safety or the lives of other staff in the vicinity;
- Failed to consider other options and the relevant factors such as the patient's condition, before selecting a 'use of force' option against the patient;
- Punitively applied pain inflicting techniques on the patient in circumstances where it was unnecessary and unjustified; and
- Failed to treat the patient with courtesy and fairness.
- As such, I am satisfied Mr McGrath exhibited inappropriate and improper conduct in an official capacity when he used excessive and unreasonable force on the patient and is guilty of misconduct.
- Clause 1.5 of the Code of Conduct requires public servants to demonstrate a high standard of workplace behaviour and conduct.
- During the show cause process, Mr McGrath's representatives submitted he was experiencing a degree of personal stress around the time of the incidents, which contributed to his frustration and his subsequent swearing at the patient involved in the Green Whistle Event. This submission, however, is inconsistent with Mr McGrath's own evidence during the proceedings where he indicated that he did not allow personal stressors to impact his work.
- In the absence of a plausible explanation for his conduct, I am satisfied Mr McGrath also contravened Clause 1.5 of the Code of Conduct without reasonable excuse by failing to demonstrate a high standard of workplace behaviour and personal conduct, when he called the patient a 'fucking piece of shit' in a setting where the patient, Police and other staff were within hearing range.
- Likewise, I am satisfied Mr McGrath contravened, without reasonable excuse, Clause 3.1 of the Code of Conduct and a requirement to commit to his role, when he failed to adhere to OVP training practices and requirements during the Green Whistle Event.
The Mental Health Event: Allegations One, Two and Four
- The circumstances of the Mental Health Event were summarised in Ms Nasato's show cause letter dated 22 June 2018, where it was alleged Mr McGrath had again used unnecessary, unjustified and excessive force during the physical restraint of patient UR C007903 on 19 May 2018.
- Essentially, the MNHHS maintain Mr McGrath pushed and physically restrained a patient, after engaging in a verbal altercation and failing to apply any of the de-escalation strategies identified in OVP training.
- One of the primary concerns raised by MNHHS is the manner in which Mr McGrath rapidly escalated to aggressive physical contact with the patient, in the absence of ongoing aggression or imminent threat from the patient.
- Similar to the Green Whistle Event, it is submitted Mr McGrath unnecessarily used several pain inflicting techniques during his interaction with the patient, despite the patient expressing concerns about being in pain.
- Other concerns included the use of language by Mr McGrath during his interaction with the patient, which it is claimed only served to trigger the patient and escalate the situation, in circumstances where he could have chosen to implement the de-escalation techniques taught during OVP training.
- On 19 May 2018 at 5.30 am, Mr McGrath and two other security officers were requested to provide assistance in the ED, Mental Health Interview Room, where a patient was already being held and monitored under an Emergency Examination Authority (EEA), due to concerns about his behaviour and possible self-harm.
- Mr Trudgett prepared an OVP review in respect of the Mental Health Event, which included a series of observations which eventually formed the basis of further allegations put to Mr McGrath during the show cause process, namely:
- Mr McGrath was observed communicating with the patient in a manner which was not conducive to de-escalating an agitated patient or which was unprofessional and inconsistent with the Code of Conduct and MNHHS values. Examples of comments made by Mr McGrath included:
- 'How long is a piece of string?'
- 'Maybe you deserved it'
- 'You're getting sedated now'
- 'Shut the fuck up'
- An observation about the continued use of language and unprofessional communication being a trigger to escalate patient aggression, noting a prior review of Mr McGrath in respect of another incident had found he had resorted to a similar approach;
- A failure on Mr McGrath's part to take positive steps to de-escalate the patient resulted in Mr McGrath physically striking the patient after he encroached Mr McGrath's personal space and pointed in his face;
- Notwithstanding Mr McGrath's claim that he used an open palm heel strike to the chest to increase the reactionary gap, the available footage shows Mr McGrath striking the patient high on the chest and grabbing the patient's throat, which is not a technique that is taught or suggested in OVP training;
- A view that Mr McGrath's use of certain techniques while restraining the patient, such as wrist locks and applying forceful pressure on the patient's left arm, were punitive and unnecessary.
- An observation that the repeated use of punitive techniques by Mr McGrath was concerning given previous cautions he has received, particularly given the risk of patient and staff injury, in the event prolonged interventions were necessary;
- Concerns raised about Ms McGrath's continued attempts to antagonise the patient by making contact with his foot, despite the patient becoming more settled and sedate.
- Still images, CCTV and body worn camera images provided to the Commission of the incident show the following events that are relevant to the allegations between 5.38 am and 6.04 am:
- The patient approaching Mr McGrath, pointing at Mr McGrath and telling him "you can't tell me what the fuck to do then, either";
- The patient telling Mr McGrath "You haven't even been here";
- The patient making a "rent a cop" remark to the PSOs, including Mr McGrath;
- The patient approaching Mr McGrath, looking upwards and pointing in Mr McGrath's face, telling him, "you're not my fucking boss cunt";
- In response, Mr McGrath can be observed pushing the patient hard in the upper chest and lower part of his throat and then instigating a restraint where the patient is taken down to the ground;
- Mr McGrath exerting pressure on the patient's left shoulder while he is on the ground;
- Mr McGrath repeatedly twisting the patient's left wrist while he is on the ground;
- Mr McGrath and another PSO lifting the patient and transporting him to a resus area;
- The patient screaming in pain, yelling "my left hand, my left hand, my left hand";
- Mr McGrath twisting the patient's wrist 180 degrees;
- The patient being thrown onto a stretcher in the resus area;
- A nurse requests Mr McGrath to "relieve some of the pressure";
- Mr McGrath appears to increase pressure on the patient's left shoulder;
- Patient begins to cry;
- Patient gradually appears more sedate and drowsy, with clinical staff and security staff continuing to observe the patient;
- Mr McGrath now standing at the bottom of the stretcher with hands near the patient's feet;
- Mr McGrath's hands can be seen moving near the patient's feet, after which patient is observed arching body in apparent pain and screaming, "my feet, my feet, who's on my feet", with patient continuing to scream.
Mr McGrath’s response
- During the show cause process, it was asserted by the AWU that Mr McGrath's communication with the patient was consistent with what might be observed in other patient incidents in the hospital and should not be given any weight when considering the allegations.
- In cross-examination, Mr McGrath denied telling the patient to 'shut up' on multiple occasions during the incident.
- In his evidence to the Commission, Mr Trudgett maintained that Mr McGrath's comments to the patient during the incident were unhelpful, noting:
The particular words that we have seen…. 'Take a chill pill, chill out, calm down', they're not usually de-escalation strategies purely on the content. In fact, they tend to make the situation worse.
The constant backwards and forwards, we can just see, is starting to escalate the situation.
- Mr Trudgett considered Mr McGrath failed to explore alternative techniques outlined in the Health Intervention Model, including negotiation, de-escalation, disengagement or medical intervention.
- Although Mr McGrath conceded in cross-examination that arguing with a challenging patient was not consistent with de-escalation strategies he had previously been taught, he did not agree that his interaction with the patient could be characterised as arguing. Instead, his view was that he was having a conversation with the patient. He did not agree that his approach was 'winding up' the patient.
- In response to Mr Trudgett's concerns about the use of unnecessary and excessive force, Mr McGrath's representatives submitted during the show cause process that Mr Trudgett was not directly involved in the incident and could not possibly understand the "stress and necessary force that might be required during an incident", as opposed to officers who were directly involved and close enough to observe and detect the intentions of the patient.
- In the show cause response, there was some acknowledgement by the AWU, on behalf of Mr McGrath, that several of the OVP procedures he undertook could have been performed better, but he maintained that he did not intentionally seek to use excessive force and took what he believed were reasonable actions to control the risk to himself and others.
- During the unfair dismissal proceedings, Mr McGrath retreated from this position. Aside from his swearing at the patient involved in the Green Whistle Event, he did not accept he had breached the OVP guidelines.
- Mr McGrath also denied grabbing the patient by the throat, immediately before he was taken down to the floor.
- The AWU submitted Mr McGrath had taken steps to de-escalate the situation, before becoming concerned for his safety, and the safety of those staff around him, when the patient waved his finger at Mr McGrath and encroached into his personal space. In an earlier show cause response, it is claimed that Mr McGrath genuinely thought the patient was going to assault him.
- It was later asserted in written submissions that "Mr McGrath had to take action in order to prevent possible further violence and aggression from the patient and attempting to escape the hospital".
- Mr Trudgett's evidence was that the risk of the patient absconding from the hospital was very low, noting:
I think we've probably seen the example of if…risk was real, he's on the other side of the two officers at the time. If he was going to run out of the room, he would have taken that opportunity at that point.
- Mr Trudgett also considered there was no imminent threat to Mr McGrath's safety or the safety of others around him, in circumstances where the patient was only gesturing at him.
- In cross-examination, Mr McGrath acknowledged the behaviour of the patient, immediately before he initiated the restraint, was consistent with the patient's conduct on two other occasions in the minutes before the take-down. That is, he had previously approached Mr McGrath or sworn.
- Mr McGrath acknowledged he was aware the patient's behaviour had been oscillating up and down throughout the early morning, with periods of calm and moments where he would become aggressive.
- At times, in his oral evidence before the Commission, Mr McGrath appeared to be pointing to the conduct of the patient as justification for the steps he took in restraining and handling the patient.
- Mr Trudgett considered the circumstances of the patient, and his behaviour, was typical of the types of behaviour PSOs were trained for and regularly asked to assist with. He explained it was expected that PSOs would ignore 'being baited' by patients.
- Ms Nasato clarified in cross-examination that the relevant focus, from her perspective, was on Mr McGrath's behaviour and his interaction with the patient.
- Mr McGrath's representatives disagreed that the CCTV footage revealed that certain techniques being used by Mr McGrath were punitive.
- Mr McGrath argued his approach was consistent with OVP training. For example, Mr McGrath evidence was that he used a wrist lock to move the patient up off the floor and transfer him to resus, with a view to minimising any risks associated with the transfer and the environment around them.
- In cross-examination, Mr McGrath explained he used the wrist lock while the patient was on the floor to get him to comply with his directions. He considered the other PSO was utilising the same technique.
- Representatives for MNHHS argue Mr McGrath's position on this issue is inconsistent with the available footage of the incident, which highlights Mr McGrath utilising a wrist lock after the patient is complying. It is submitted Mr McGrath had previously acknowledged in cross-examination that he was aware from his training that pain compliance techniques should always cease once the subject or patient is complying.
- It is also contended that Mr McGrath was aware, through his training, that there is no basis for continuing to inflict pain on a person where the situation is under control.
- Mr McGrath's recollection was the patient was not compliant. In response to questions around a wrist lock where he could be observed bending the patient's wrist in the order of 180 degrees, his evidence was:
…he was basically putting his weight down and stuff, so we couldn't move him. So the more pressure we apply, the more compliance you get out of him.
- He also denied using excessive or punitive force on the patient's shoulder while he was in a prone position on the stretcher. He considered the nurse who was present was not asking him to relieve the pressure on the patient's shoulder, but instead directing her comments to another PSO who was present during the incident.
- MNHHS's position is that the video footage clearly shows Mr McGrath increasing the pressure he is applying to the patient's shoulder on five occasions within a three-minute period during the course of the incident. Mr McGrath denies this occurred.
- In respect of concerns about Mr McGrath interfering with the patient's feet, Mr McGrath's representatives accepted, during the show cause process, that he was holding the patient's leg and ankle (along with another nurse), but that it was in response to the patient trying to kick out. In a separate earlier response on the same issue, it was noted:
as best he can recollect, he did not attempt to antagonise the patient by making contact with his foot.
- Curiously, in cross-examination, Mr McGrath retreated from both of these submissions, when he denied holding the patient's feet at all during the incident. Instead he repeated that he was pushing down with his arms on the bed next to the patient's leg.
Are Allegations Three and Four, as they relate to the Mental Health Event able to be substantiated?
- For the reasons set out below, I am unable to accept Mr McGrath's explanation of his conduct in respect of allegations three and four as they relate to the Mental Health Event.
- I accept Mr Trudgett's evidence that the circumstances and behaviour of the patient involved in the Mental Health Event were typical behaviours PSOs, including Mr McGrath, are trained for and regularly requested to assist with.
- Much of Mr McGrath's evidence focussed on the behaviour of the patient, essentially arriving at a conclusion that he felt he had no choice but to physically restrain the patient, in circumstances where he thought the patient was going to assault him or escape from the area.
- The difficulty I have with this explanation is that it does not align with the evidence before the Commission. Nor does it adequately address the concerns of Mr Trudgett and MNHHS in respect of Mr McGrath's failure to utilise de-escalation strategies before restraining the patient.
- A review of the CCTV footage confirms the behaviour of the patient involved in the Mental Health Event oscillated from swearing and yelling to crying. For short periods, he can be observed engaging in conversation or banter with the PSOs or medical staff, all with a view to being able to leave the hospital. On occasion, the patient attempts to bait the PSOs, including Mr McGrath by swearing or making inappropriate or inflammatory comments – i.e. rent a cop.
- During the proceedings I struggled to identify occasions on the footage where Mr McGrath has utilised de-escalation techniques identified by Mr Trudgett.
- I also accept Mr Trudgett's evidence that there were occasions where Mr McGrath used language that was not conducive to de-escalating the patient when agitated.
- At times his language was unprofessional and not in accordance with the Code of Conduct. For example, it is clear Mr McGrath told the patient to 'shut up' on several occasions notwithstanding his denials.
- I also accept that Mr McGrath did not explore other options outlined in the Health Intervention Model before using physical force. His failure to do this and the challenges with his approach, became very clear in the wake of the Commission being shown footage of the patient's interactions with another PSO on the shift immediately before Mr McGrath.
- The patient's behaviour towards the other PSO, Mr Cowan, was similar to that exhibited towards Mr McGrath (i.e. swearing, yelling, gesturing and standing close to the officer), yet Mr Cowan spoke in a calm but firm voice, utilising strategies such as the loan of a hospital phone to the patient or offering some water or a meal to distract the patient from his escalating aggression or frustration in response to being kept in the hospital. This approach continued for some time, with Mr Cowan continuing to keep the situation under control as the patient oscillated between being calm and angry.
- In cross-examination, when asked as to whether he considered the approach taken by Mr Cowan was reasonable and proportionate, Mr McGrath was unwilling to answer the question directly.
- In relation to MNHHS’s concerns about the nature of the techniques utilised by Mr McGrath when restraining the patient, I am also satisfied the footage and still shots provided to the Commission clearly show him striking the patient high on the chest and grabbing the lower part of his throat as he was taken down to the floor. I accept these are not techniques that were taught during the OVP training undertaken by Mr McGrath.
- Although I consider it is likely the patient was expressing some resistance to being restrained during the course of the event, it is clear Mr McGrath's use of pain inflicting techniques on occasion are punitive and unnecessary, particularly in circumstances where there were a number of PSOs assisting with the restraint and where the patient (and another staff member) requested he lighten the pressure on the patient's left arm.
- Having considered the footage and other evidence before the Commission in relation to the allegation that Mr McGrath continued to antagonise the patient by interfering with his feet after he had settled somewhat, I am not prepared to accept Mr McGrath's claim that he was not touching the patient's feet.
- I reached this conclusion after examining the footage of the incident which allowed me to take a closer look at the position and movement of Mr McGrath's arms and hands, at the same time as the patient screamed out and moved his body in apparent pain. I consider it more likely than not that Mr McGrath was interfering with the patient's foot in a way that was antagonising the patient.
- Finally, having regard to all the materials in respect of the incident, I accept Mr Trudgett's opinion that the incident may well have been avoided had Mr McGrath implemented further de-escalation strategies.
- I this it is quite clear the patient was not attempting, in any meaningful way, to leave the premises. I do not consider there was a genuine threat to Mr McGrath's safety or the safety of others, immediately before Mr McGrath elected to use physical intervention and pain techniques to manage the situation.
- Again, I consider the evidence of Mr Trudgett in combination with the CCTV and body worn camera footage is far more compelling and credible than the account provided by Mr McGrath, during both the show cause process and the proceedings, which I found to be inconsistent and at odds with more reliable evidence before the Commission.
- For these reasons, I am unable to accept the account provided by Mr McGrath in respect of the Mental Health Event. Instead, I consider the allegations are able to be substantiated.
Do the substantiated allegations satisfy the definition of misconduct under the PS Act?
Has Mr McGrath contravened the Code of Conduct?
- The Respondent's case is that the substantiated allegations led to Mr McGrath's dismissal because he was guilty of misconduct, pursuant to s 187(1)(b) of the PS Act; and contravening s 187(1)(f)(ii) without reasonable excuse, breaching Clause 1.5 and 3.1 of the Code of Conduct.
- I am not persuaded that Mr McGrath's conduct in respect of the Mental Health Event could be characterised as an error of judgement, an innocent mistake or mere negligence.
- I am satisfied that:
- (a)Mr McGrath actively departed from the training he received in respect of the Health Intervention Model and the applicable protocols of the Situational Use of Force Model, when he:
- Failed to consider and apply defusing techniques to de-escalate the situation, before resorting to physical intervention and restraints with the patient;
- Used an unreasonable level of force against the patient in circumstances where there was not a real and impending threat to the patient's life, his own life or the safety of other staff in the vicinity; and
- Punitively applied pain inflicting techniques on the patient in circumstances where it was unnecessary and unjustified;
- (b)Mr McGrath exhibited inappropriate and improper conduct in an official capacity when he used excessive and unreasonable force on the patient and is guilty of misconduct;
- (c)Mr McGrath contravened, without reasonable excuse, Clause 3.1 of the Code of Conduct and a requirement to commit to his role, when he failed to adhere to OVP training practices and requirements while interacting with the patient; and
- (d)Mr McGrath failed to adhere to MNHHS values and the Code of Conduct, when failed to interact with the patient in a respectful manner and later antagonised him within the resus area of the hospital.
Was Mr McGrath provided with an opportunity to respond to the allegations about his conduct?
The show cause process
- Mr McGrath’s representatives have not argued, nor does the evidence before the Commission suggest he was denied procedural fairness.
- On 22 June 2018, a show cause process in respect of the allegations was initiated by Ms Nasato. Mr McGrath was requested to respond to the allegations within 14 days of receipt of the show cause letter.
- The allegations and particulars were set out within the show cause documentation, along with a series of supporting documents. Importantly, Mr McGrath was invited to view CCTV and body worn camera footage before responding to the correspondence.
- Mr McGrath’s representative requested an extension of time to respond, which was granted. He was given five weeks within which to respond to the first show cause notice.
- After receiving Mr McGrath's response to the show cause letter, Ms Nasato wrote to Mr McGrath on 9 September 2018 advising him all four allegations had been substantiated. Mr McGrath was invited to respond to the disciplinary penalty of termination within 7 days of receipt of the letter.
- During the proceedings, Mr McGrath acknowledged that he understood the content of the correspondence and that his employer was considering a penalty of termination at this point.
- On 11 September 2018, the Union requested, inter alia:
- Copies of CCTV and body worn camera footage of the incidents involving the patients; and
- An extension of time of seven days to respond to the second show cause notice.
- An extension of time to respond to 21 September 2018 was granted by Ms Nasato on 12 September 2018. On 13 September 2018, MNHHS advised that due to patient confidentiality and other concerns, the CCTV and body worn camera footage would not be released to the Union. However, the Union and Mr McGrath were invited to arrange a time to view the footage at Caboolture Hospital.
- On 18 September 2018, Mr McGrath provided his response to the second show cause notice.
- In the correspondence, Mr McGrath’s representatives noted, "The AWU has had the opportunity to view the body worn camera footage and CCTV footage related to the allegations but not in detail."
- In cross-examination, Mr McGrath acknowledged he and his union were given an opportunity to review the footage and he did not request his union to seek another viewing.
- In the same correspondence, it was noted that Mr McGrath had advised his representatives he had previously raised concerns he held in relation to how his extenuating personal circumstances might impact his ability to undertake his role. The AWU submitted that Mr McGrath’s personal circumstances and some acknowledged variation from the OVP procedures should be considered by MNHSS in the broader context of Mr McGrath’s generally capable performance.
- On 11 October 2018, having received a response, Mr Shaun Drummond, Chief Executive of MNHHS (as he then was) wrote to Mr McGrath informing him that the disciplinary outcome was termination of employment.
- Having regard to the show cause processes undertaken by MNHHS, I am satisfied Mr McGrath was given an opportunity to respond to the allegations that eventually formed the basis for his dismissal.
Was the dismissal related to Mr McGrath’s conduct?
- In the absence of any other evidence suggesting otherwise, and having regard to the allegations, show cause process and the conclusions of Mr Drummond, I am satisfied for the reasons set out above that the allegations were substantiated, and the dismissal related directly to Mr McGrath’s conduct.
Was Mr McGrath warned about his conduct?
- Mr McGrath maintains he has not been the recipient of any formal disciplinary action, up until the events which led to his dismissal.
- Certainly, the materials before the Commission indicate Mr McGrath had not previously participated in a formal show cause process which resulted in a formal warning, as provided for in s 188 of the PS Act.
- That aside, I accept that on several occasions in the months preceding his dismissal, Mr McGrath was requested to respond to concerns arising out of three separate events concerning Patient No. C440924, Patient No. UR237674 and a further incident involving a 16-year-old girl.
- In all three incidents, the relevant decision maker elected to respond to concerns about Mr McGrath’s conduct, by taking local management action which included a letter of caution and two further letters setting out the decision maker’s expectations in relation to Mr McGrath’s future conduct.
- This approach is not uncommon in the Queensland Public Service, with supervisors or managers (depending on the extent of the deficiencies in performance or conduct) often initially electing to manage any issues at a local level, rather than escalating the situation to a formal disciplinary process.
- By way of example, Mr Brett Sell, Manager of Protective Services issued a caution letter to Mr McGrath regarding an incident involving a 16-year-old girl, which was captured on CCTV footage and according to the letter, showed Mr McGrath directing the following language towards the patient:
- “you piece of shit”
- “Sit up and behave yourself and don’t be bloody disgusting”;
- “Sit there and shut up”
- “Aw shut your hole”
- “What are you crying about? You are having a fuckin sook you are”.
- The caution letter that was issued to Mr McGrath concluded the language used by him was unprofessional, disrespectful and counterproductive to de-escalating the situation. It was claimed Mr McGrath’s conduct also appeared to elevate the situation (my emphasis).
- The letter formally cautioned Mr McGrath, highlighting an expectation that his performance would improve in the future. Notably, he was requested to:
- Ensure his conduct and communication was professional and courteous;
- Take more time to de-escalate situations;
- Take advice and instruction from clinicians regarding the timing and nature of interventions;
- Work with clinicians, especially in situations where there is no immediate threat from the subject person and the issue is more noncompliance, rather than aggression.
- In cross-examination, Mr McGrath had difficulty recalling the events of the incident involving the 16-year-old and the issuing of the caution letter.
- On the materials before the Commission, I am satisfied Mr McGrath was issued with a caution, which highlighted concerns about his conduct and clearly set out what was expected of him in the future. The caution letter was issued after the Green Whistle Event but approximately two months before Mental Health Event.
- On 15 March 2018, Mr Sell issued two additional letters of expectation to Mr McGrath in relation to incidents involving Patient C440924 and Patient UR237674.
- One of the letters included a summary of expectations in respect of Mr McGrath’s conduct in the future, with a particular emphasis on de-escalating situations without using physical restraint, working closely with clinicians on the timing and nature of interventions; and applying due care and diligence when using handcuffs by ensuring they were not applied in a manner that caused unnecessary pain or discomfort.
- A second letter of expectations reminded Mr McGrath of the importance of his conduct and actions being, at all times, authorised, justified, reasonable, proportionate, appropriate, legally defensible and tactically sound and effective.
- In cross-examination, Mr McGrath acknowledged that:
- He understood Mr Sell’s letter of 15 March to be a caution;
- He understood the expectations set out in the letter.
- Mr Steven Tregarthen, a Security Supervisor, also took steps to arrange a meeting and speak with Mr McGrath about his behaviour and treatment of patients. The meeting took place on 14 May 2018. Mr Tregarthen prepared a file note of the discussion which was attached to documentation provided to Mr McGrath during the show cause process.
- The file note included the following content:
- Advised him that I was aware that issues were in the hands of HR but I had concerns about his judgement and excessive use of force;
- Advised him that I had little faith in his judgement and what amounted to a pattern of assaulting patients with an excessive use of force;
- I said, “these patients aren’t prisoners. Our job is to help them…. Why did you handcuff a person who did not require a restraint?”
- He seemed to have an attitude of punishing compliance;
- I advised him that my intent was protecting our patients and protecting him from himself. If he persisted in assaulting patients – I would make a complaint to the Police myself…;
- Suggested he consider his actions and perhaps his future, as on his current path he would likely be charged with assault or worse.
- In cross-examination, Mr McGrath was unable to recall the details of his discussion with Mr Tregarthen but continued to insist his interaction with Mr Tregarthen could not be characterised as a formal warning.
Conclusions - Was Mr McGrath warned about his conduct?
- Although I accept Mr McGrath had not previously received a formal warning as part of a disciplinary process initiated in accordance with s 187 of the PS Act , I am satisfied he received at least one caution and two letters of expectations around a number of issues that were in many respects, very similar to those that eventually formed the basis of his dismissal.
- It is clear a Security Supervisor also took the time, at a local level, to make an appointment with Mr McGrath and step him through concerns he held in respect of Mr McGrath’s interaction with patients. During the meeting, I accept he highlighted the potential consequences for Mr McGrath if he did not improve his approach.
- I do not accept that Mr McGrath was not warned about his conduct.
- Many of the key themes highlighted in the caution letter, the expectations letters and during his discussions with Mr Tregarthen, were very similar in nature to several of the behavioural concerns that followed the Mental Health Event.
- The Mental Health Event occurred after Mr McGrath has been issued with the correspondence in respect of the other patient events and after Mr Tregarthen had spoken to him about his concerns.
- I am satisfied Mr McGrath was warned about this conduct. It is clear he was provided with direct feedback as to how he could improve his performance and conduct.
- Even if this was not the case, I note that Mr McGrath is an experienced PSO, having been employed by the Health Service in different roles for a cumulative period of approximately six years.
- Mr Trudgett’s evidence was that Mr McGrath was provided with extensive relevant training, including a five-day aggressive behaviour management course in 2012, along with further, ongoing refresher training in restraint and other OVP policies and practices in 2013, 2016 and 2018.
- Mr McGrath was also provided with training in the Code of Conduct.
- In cross-examination, Mr McGrath was taken through the training materials. He achieved well in various tests that followed the training and acknowledged he understood the intent of the training. As such, I am satisfied he held a solid grasp of OVP practices and policies.
Are there any other relevant matters the Commission should consider?
- Mr McGrath maintains his dismissal was harsh because the disciplinary action taken was disproportionate to the alleged conduct.
- In response to a question from the Commission as to what consideration was given to a final warning instead of dismissal, Mr Nasato explained:
…in looking at the increasing escalation of his behaviour, it was determined that it was the most appropriate action to take considering …there was actually a patient involved … and we were considering a significant event.
…there’s sufficient documentation around the training of Mr McGrath, the conversation within his line manager at the time – you know, sufficient opportunity for him to have changed his behaviour in a – in an appropriate fashion, which I did not see when I looked at a timeline of events.
- Mr Drummond’s evidence was that he considered alternatives to dismissal, including re-training, but he determined that such an approach would not be successful in the long-term.
- Certainly, having regard to Mr McGrath’s show cause responses and his unpreparedness or inability at times during the proceedings to reflect on what might have been a more reasonable approach, I am not satisfied this is a case where additional training would have assisted, particularly given he had previously received both verbal and written feedback about how to improve his performance and conduct.
- Significantly, other than the Green Whistle Event, where Mr McGrath swore at a patient, he did not express any remorse for his actions during the show cause process or the unfair dismissal proceedings. In the main, he consistently denied any wrongdoing on his part.
- I am satisfied that Mr McGrath’s actions in relation to Allegations One, Three and Four significantly deviated from his training and did not align with the requisite approach, notwithstanding his relatively long period of service with his employer.
- Likewise, in respect of Allegation Two, despite receiving feedback in respect of his language, communication and restraint techniques, Mr McGrath continued to take an approach that did not conform with the relevant code and values.
- In all those circumstances, I consider Mr McGrath’s dismissal was proportionate to the conduct in which he engaged.
Mr McGrath’s personal and family circumstances
- During the show cause process, Mr McGrath’s representatives highlighted he was under a degree of stress at the time of the Green Whistle and Mental Health Events due to personal and family concerns. It is submitted MNHHS was made aware of his circumstances.
- Although it is the case that Mr McGrath took several weeks leave from work, my understanding is he returned to work in mid-April 2018. That is, he didn’t take leave until some months after the Green Whistle Event and he returned approximately a month before the Mental Health Event.
- Having regard to the materials before the Commission, there is limited, if any evidence in support of the argument that Mr McGrath’s personal, family or medical circumstances influenced his conduct during either of those incidents.
- In any event, Mr McGrath acknowledged during the proceedings that whatever personal circumstances an employee might be facing, it could never justify a person abusing or assaulting someone in the workplace.
Social and Economic Consequences (Harshness)
- The AWU has highlighted the adverse ‘social and economic consequences’ of the dismissal in support of its position that Mr McGrath’s dismissal was unfair.
- Mr McGrath’s evidence at the time of the hearing was that he was unemployed and looking for full-time work. He noted that was also a ‘Retained Firefighter’ and earned approximately $200.00 (before tax) per month.
- He listed his necessary expenses as:
- therapy costs for his autistic son: $600.00 per month;
- mortgage costs: up to $2,300.00 per month;
- leased car: outstanding balance of $68,000.00;
- pending family court proceedings;
- outstanding debt to the Department of Health: $10,000.00.
- Mr Drummond explained that he took the time to consider the financial consequences of dismissal for Mr McGrath, noting:
I was very aware that in terminating a person’s employment, you are depriving them of their livelihood. It is not a decision I lightly take. Consequently, I was very conscious that termination would have a great financial impact on Mr McGrath, especially as he was an employee on a moderate income in an area of relatively high unemployment. However, I judge this impact to be no different to any other employee.
- Although I have some sympathy for Mr McGrath’s personal and economic circumstances, I do not consider they outweigh the conduct which led to the substantiation of all four allegations. This is particularly the case in circumstances where Mr McGrath received both a substantial level of training and direct feedback about his conduct before at least one of the incidents that led to his dismissal.
- I am not satisfied Mr McGrath’s dismissal could be characterised as harsh in those circumstances.
- Although not raised in his original application or through the show cause process, Mr McGrath’s evidence to the Commission briefly covered details of two separate events involving security officers who he alleged were involved in incidents of a comparable nature, yet still retained their employment.
- Mr McGrath’s evidence was that Mr Charles punched a 13-year-old girl in the face. He noted the actions were recorded on camera, yet his employer took no action. Separately, he stated he was aware of an incident where Mr Carling punched a man in the face twice on the ground, while Mr Wallis was restraining the patient. Again, he maintains the Respondent took no action.
- Mr Trudgett's evidence in relation to the alleged differential treatment of Mr Charles was as follows:
- In relation to paragraph (a) of Mr McGrath's statement, I am aware of an incident that occurred on 13 December 2017 involving Security Officer, Mr Corey Charles as Mr Chris Bonner, Principal HR Business Partner, MNHHS requested that I complete a review of this incident. As there was no patient or staff complaint of this incident at the time it occurred it was only brought to my attention following notification from human resources.
- I completed my review and concluded that Mr Charles did not punch the patient as alleged by Mr McGrath in his affidavit. During the incident Mr Charles used language that was not conducive to deescalating the situation and the patient struck Mr Charles on the arm and was spitting at the security officers. The evidence did not substantiate that Mr Charles used excessive force. I understand the circumstances surrounding Mr Charles' conduct was managed through a review process which Mr McGrath should not be privy to.
- Mr Trudgett's evidence in relation to the incident involving Mr Carling and Mr Wallis was:
- In my view the incident is different to the incidents involving Mr McGrath because:
81.1 the visitor was the initial aggressor and threatened to kill the security officers and their families;
81.2 the visitor took a fighting stance indicating he would fight the security officers;
81.3 during the restraint the visitor grabbed Mr Carling's testicles and in an attempt to distract the visitor Mr Carling struck him on the arm;
81.4 Mr Wallis struck the visitor in the stomach as he believed the visitor was biting Mr Carling;
81.5 there was insufficient evidence to suggest that excessive force was used as the visitor assaulted security during the restraint;
81.6 body cam footage was not available;
81.7 Mr Carlin admitted that the incident was unfortunate and stated that he had learned from it; and
81.8 I am not aware of Mr Carling or Mr Wallis having any disciplinary history prior to this incident.
- Ms Nasato's evidence in relation to the incidents was as follows:
- … each discipline case is managed separately and in confidence. We determine and asses each on its own merits depending on the evidence in the particular case and considerations such as mitigating circumstances.
- I note that as all disciplinary processes are required to be kept confidential then it would be surprising for Mr McGrath to be aware of all the facts, circumstances and and outcomes with respect to another investigation and/or disciplinary process. The severity of the case, circumstances leading up to an incident, available evidence as well as the employee's record of behaviour and history are all taken into consideration. Those cases were vastly different on all counts and should not be relevant to this case.
- Having regard to the evidence before the Commission in respect of the two other events raised by Mr McGrath, I am not persuaded they are sufficiently comparable to enable an assessment and subsequent determination as to whether he has been the recipient of differential treatment.
Was Mr McGrath’s dismissal harsh, unjust or unreasonable?
- The role of the Commission in an application such as this is to consider whether Mr McGrath’s dismissal from his role as a Protective Security Officer was harsh, unjust, or unreasonable, or done for an invalid reason.
- The words "harsh, unjust or unreasonable" have their ordinary meaning. In Bostik (Australia) Pty Ltd v Gorgevski (No 1),Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985:
These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct.
- Guidance on what might be considered "harsh, unjust, or unreasonable" can also be found in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited:
… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and 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."
- In Stark v P&O Resorts (Heron Island), Chief Commissioner Hall (as his Honour then was) wrote:
Where… an application... is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task of the Commission is to assess whether it should intervene to protect the applicant against a decision which is fundamentally one for the employer to make. Ordinarily intervention will be justified only where the employer has abused the right to dismiss. Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, will be held immune from interference by the Commission….
- The employer in this matter was entitled on the materials before it, including extensive CCTV and body worn camera footage, to arrive at a conclusion that Allegations 1 to 4 at paragraph 25 were substantiated.
- The decision of Mr Drummond to dismiss the applicant was formed on reasonable grounds.
- For the reasons set out earlier in this decision and having regard to the factors in s 320 of the Act, Mr McGrath has failed to discharge the onus in establishing his dismissal was harsh, unjust or unreasonable.
- The application for reinstatement is dismissed.
 Exhibit 13, p 16.
 Wang and Crestell Industries Pty Ltd (1997) 73 IR 454, 63 - 64.
 Bostik (Australia) Pty Ltd v Geogevski (No 1) 36 FCR 20.
 Exhibit 7, 29.2.
 Ibid, ST-12.
 Exhibit 13, SD-03.
 T1-46, 4-14.
 T1-46, 25-28.
 Exhibit 7, 21-23.
 Ibid, 24.
 Ibid, 26.
 Ibid, 27.
 T1-32, 6-7.
 T1-32, 24-25.
 T1-33, 8-12.
 T1-33, 29-44.
 The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service  QIRC 067.
 T2-113, 6-10.
 T2-134, 45-47.
 T1-109, 10-16.
 T1-134, 10-15.
 T3-18, 17.
 T3-30, 1-13.
 T1-35, 24-43.
 T1-115, 20-25.
 Exhibit 7, p 13.
 Exhibit 1, p 57.
 T2-22, 45.
 T2-23, 4-6.
 T2-24, 39-40.
 Exhibit 3, p 254.
 Exhibit 1, p 52-53.
 T3-46, 23-28.
 Ibid, 35-39.
 Exhibit 13, p 7.
 Exhibit 7.
 Exhibit 12.
 Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20.
 Ibid, 28.
 Byrne v Australian Airlines Limited (1995) 185 CLR 410.
 Ibid, 465.
 Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914.
 Ibid, 916.
- Published Case Name:
The Australian Workers' Union of Employees, Queensland v Metro North Hospital and Health Service
- Shortened Case Name:
The Australian Workers' Union of Employees, Queensland v Metro North Hospital and Health Service
 QIRC 79
Member Knight IC
03 Jun 2020