James v State of Queensland (Department of Youth Justice)
[2021] QIRC 253
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- James v State of Queensland (Department of Youth Justice)[2021] QIRC 253
- Add to List
James v State of Queensland (Department of Youth Justice)[2021] QIRC 253
James v State of Queensland (Department of Youth Justice)[2021] QIRC 253
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | James v State of Queensland (Department of Youth Justice) [2021] QIRC 253 |
PARTIES: | James, Keith David (Appellant) v State of Queensland (Department of Youth Justice) (Respondent) |
CASE NO: | PSA/2021/41 |
PROCEEDING: | Public Service Appeal – Fair treatment decision |
DELIVERED EX TEMPORE ON: | 21 July 2021 |
HEARING DATE: | 21 July 2021 |
MEMBER: | Industrial Commissioner Dwyer |
HEARD AT: | Brisbane |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – appeal against a fair treatment decision – disciplinary finding – allegation of unreasonable use of force – allegation of completing Workplace Injury, Illness and Incident Report Form which contained false and/or misleading information – whether decision was fair and reasonable – decision regarding allegation of false and/or misleading information not substantiated – decision set aside – decision regarding unreasonable use of force substantiated – decision fair and reasonable |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562B, 562C Workers' Compensation and Rehabilitation Act 2003 (Qld) s 129 |
CASES: | Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5. |
Reasons for Decision
Delivered ex tempore on 21 July 2021
Background
- [1]Mr Keith James is employed with the Department of Youth Justice (‘the department’) as an acting supervisor, classification level 005.4, at the Brisbane Youth Detention Centre.
- [2]On 17 February 2019, Mr James was involved in an incident with a detainee (hereinafter referred to as ‘the YP’). The incident particulars were (broadly) that the YP had been identified as being agitated by two Youth Detention Workers (‘YDWs’). The YDWs sought some assistance from Mr James to escort the YP to a separation cell for timeout. Throughout the course of this exercise, the YP was verbally abusive and also displayed some aggressive behaviours.
- [3]The YP’s behaviour was such that it required the two YDWs and Mr James, working in unison, to steer him towards the separation cell. They did so without making any (or any significant) physical contact with him. Upon getting the YP into the separation cell, Mr James and one other YDW then proceeded to perform a manoeuvre known as ‘ground stabilisation’. In this instance, it involved Mr James pushing the YP against the wall of the separation cell and then onto the floor where he was physically restrained by Mr James and another YDW.
- [4]In the course of this manoeuvre, Mr James sustained an injury in the form of fracture to the bone on the outside of the left hand/last finger. In addition to this, the YP sustained a minor trauma to his head in his journey to the floor.
- [5]Following the incident, Mr James was the subject of three allegations arising from his conduct on that day.
Previous proceedings
- [6]During the initial show cause process (which commenced in or about January 2020), there was a failure by Mr James to engage with the process within the nominated timeframe and consequently, a decision was made in relation to those allegations without input from Mr James.
- [7]The matter then took a circuitous route through this jurisdiction in the form of a previous (unpublished) Public Service Appeal. A decision was made in that matter confirming the decision of the department.
- [8]The matter then went to the Supreme Court of Queensland on an application for judicial review. That application was apparently resolved by consent without the need for formal proceedings, and it returned to the parties to begin the show cause process again.
- [9]During this second process, Mr James had access to relevant CCTV footage in or about July 2020 and, assisted by a representative, made fulsome submissions in responses to the allegations.
- [10]Following a decision issued in January 2021, the matter has returned to this jurisdiction in the form of the current proceedings.
Current proceedings
- [11]On or about 4 January 2021, Mr James was advised in correspondence that two of the three allegations that had been made against him in relation to his conduct on 17 February 2019 were substantiated. This is the decision that Mr James now appeals.
What decisions can the Industrial Commissioner make?
- [12]The nature of Public Service Appeals in accordance with the Industrial Relations Act 2016 (Qld) ('the Act') is that they are a review of the decision.[1] Importantly, appeals of this nature are not a re-hearing of the matters.[2] The function that I have in respect of the jurisdiction granted to me under the Act is to determine whether the decision that is the subject of the appeal is fair and reasonable.[3]
- [13]The Act empowers me to make limited forms of orders in respect of these appeals. In short, having considered an appeal, I can:[4]
- (a)confirm the decision appealed against; or
- (b)set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
- (c)set the decision aside and substitute another decision.
Submissions of the parties
- [14]The parties provided written submissions in this matter in accordance with the Directions Order issued on 20 January 2021. I have had regard to those submissions prior to the hearing conducted today but I do not intend to descend into the detail of those written submissions. I will of course refer to the salient parts of those submissions in my consideration of the matter set out below.
Appellant's submissions generally
- [15]In the circumstances of this matter, I consider it necessary for me to make some general observations with respect to the submissions of Mr James. In his appeal notice, Mr James contends that the substantiation of the allegations against him was not fair and reasonable.
- [16]Much of the conduct that is the subject of the first allegation is captured by CCTV footage. All the parties (and the Commission) had an opportunity to examine the CCTV footage.
- [17]Notwithstanding that Mr James’ current representative only viewed the CCTV footage for the first time at the hearing (as I did), Mr James and his previous representatives were able to view the footage at length at least 12 months ago. The access Mr James (and his then representatives) had to the CCTV footage allowed them to make detailed submissions about what the footage did or did not reveal.
- [18]In my observation, it has been a consistent feature of Mr James’ submissions to deny, reject, or misrepresent facts that are plainly obvious to an objective viewer of the CCTV footage. For example, a relevant fact in this matter has been the behaviour of the YP in the dining and recreation area prior to his moving to the separation cell. It has been suggested (and is not controversial) that he was aggressive. One of the examples of aggression referred to is when the YP picks up a ping-pong bat and subsequently hurls that bat with some force.
- [19]Mr James has always contended, including at the hearing of this matter, that the bat was hurled ‘at him or towards him’. Having seen the footage, I am satisfied it was thrown away from Mr James, and with no risk of it making contact with him.
- [20]Nothing in the CCTV footage would suggest that the version contended by Mr James is correct. No viewing of that CCTV footage (which was available from multiple angles) could lead any reasonable objective person to conclude that the ping-pong bat was hurled at or towards Mr James. Yet, Mr James persisted with his written submission (including his sworn affidavit) that the bat was thrown at or near him. It clearly was not.
- [21]I was ultimately required to invite a concession from Mr James’ representative after viewing the footage and the concession was given, albeit from the bar table, at the hearing, approximately 12 months after Mr James had the opportunity to view the footage clearly contradicting his account.
- [22]Further, there was a factual dispute about whether or not Mr James struck the floor of the separation cell with his hand. The show cause material alleges that Mr James struck the floor with his fist.
- [23]In his sworn affidavit, Mr James insists the footage does not depict him ‘deliberately smashing the concrete floor and breaking his hand’.[5] Insofar as the allegation alleges Mr James deliberately struck the concrete floor with his hand, the CCTV footage clearly reveals, without any doubt, that he did.
- [24]Yet, even after multiple viewings of the CCTV footage at the hearing, there was no concession. Indeed, at the hearing of this matter I found myself engaged in a most absurd argument from Mr James’ representative that, in fact, the suggestion that he struck the floor with his fist was not accurate because ‘it was not a fist, it was a closed hand’.[6]
- [25]To be clear: the vison unmistakeably shows Mr James striking the floor with his fist.
- [26]More generally, I found the description given by Mr James of the YP’s conduct was, to some extent, exaggerated with respect to the extent to which he was aggressive or violent.
- [27]This pattern of denial and misrepresentation reflects very poorly on Mr James in that, even 12 months after he has had access to the CCTV vision, he continues to insist on denying the plainly obvious.
- [28]This somewhat bizarre refusal to accept undeniable facts is compounded by his representatives conduct, both in written submissions and orally today, continuing to insist that vision showing e.g. Mr James slamming his fist into the concrete floor, is something other than that because ‘it was not a fist it was ‘a closed hand’’.
- [29]While I was thoroughly unimpressed with this conduct by the appellant and his representative, so much of the denial and obfuscation relied on ultimately only amounted to an irritating (albeit large) distraction.
- [30]Thankfully, despite the large distraction, I have been able to distil key facts necessary to my consideration on matters relevant to the appeal. I turn to those matters now.
Allegation 1
- [31]With respect to allegation 1, the allegation confronting Mr James was that:
On the 17 of February 2019, he used force on a young person that was not authorised, justified or reasonable.
- [32]The CCTV footage that has been viewed by the parties and that captures the relevant events covers the incident over an area that I would describe as (firstly) the dining and recreation area, and then (secondly) the separation cell.
- [33]There is no dispute amongst the parties (and I agree) that the CCTV vision shows the YP in the dining area behaving in a manner that was evasive and non-compliant with directions to go to the separation cell.
- [34]In addition to that, whilst there is no audio available with the CCTV footage, it is not disputed that the YP was using abusive and provocative language in his exchanges with Mr James and the other YDWs.
- [35]Mr James says in his sworn affidavit, which was filed with his submissions on 17 February 2021 that (at paragraph 28 - speaking about the YP): "He immediately started advancing toward me and threw the ping pong bat in my direction. The ping pong bat flew past me and did not hit me."
- [36]The footage shows nothing of the sort. The YP threw the bat, which I accept is evidence of his aggression. But it was not at, or even near, Mr James.
- [37]I observed Mr James in the CCTV footage from two different angles. He was walking roughly beside and parallel to the YP at the relevant time with a long piece of furniture separating them, and Mr James did not even flinch as the bat was thrown.
- [38]There is no question that the conduct of Mr James and his colleagues in the dining area was necessary and appropriate. The YP was behaving inappropriately and aggressively, and there is no doubt that he was appropriately being directed to spend time in the separation cell. It is in the separation cell, however, where things decline.
- [39]Both the YDWs confirm that the YP walked to the separation cell.[7] That is to say, the YP did not need to be physically assisted to the separation cell. To the extent that Mr James alleges the YP was being uncooperative, it does not extend to the fact that he was being so noncompliant that he would not cooperate in heading towards the separation cell, albeit after some evasion.
- [40]It is not disputed that he continued to be verbally abusive, notwithstanding that he made his way (indirectly) towards the separation cell. There is some suggestion by Mr James and by one of his colleagues,[8] that the YP attempted to assault Mr James at the entry to the separation cell, but there is no CCTV footage of that.
- [41]In any event, even if the YP did attempt to assault Mr James at the entry to or near the entry to the separation cell, it appears that that was dealt with by Mr James using an appropriate technique to push the YP away and to put distance between him and the YP. Indeed, in this instance, the push put the YP into the separation cell.
- [42]From the commencement of the relevant portions of the CCTV footage of the separation cell it shows that, having been appropriately pushed (to some extent) by Mr James, the YP is then fully and effectively inserted into the cell. The vision shows that the YP goes past the doorway and past the door. He uses his hands to steady himself on the door and is gripping the edge of the door when he stabilises himself, but he is fully in the cell.
- [43]It has been suggested in submissions by Mr James that the YP then took an aggressive posture and/or was blocking the door, but I do not consider that the CCTV footage shows evidence of that.
- [44]On my examination of the vision in the CCTV footage, whilst the YP was standing close to the door and was still clearly in a relatively agitated state, I did not observe him to be taking an aggressive posture or to appear in any way at all an imminent threat of physical assault. The footage reveals to me that it was entirely open to Mr James at that time to simply close the door and secure the YP in the separation cell. There is no indication on the CCTV footage that Mr James tried to do this.
- [45]Instead, Mr James appears to lunge at the YP unnecessarily. When questioned about this during the hearing, there was a submission made that Mr James had to enter the cell to remove the socks and the footwear that was being worn by the YP. There is absolutely no mention of this explanation in any of the material filed in the show cause process, or in the submissions, or in the sworn statement on behalf of the appellant. Further, the CCTV footage shows that after the YP has been restrained and after Mr James and the other YDW have left the cell, the YP was still wearing his socks.
- [46]I do not accept that the removal of footwear was a reason for Mr James and the other YDW to remain in the cell. Even if it was, the physical interaction that occurred was not justified. After lunging at the YP, Mr James pushes him against a wall. It is clear from this part of the manoeuvre that Mr James is conscious of the need to protect the YP’s head because, in the CCTV vision it can clearly be seen that Mr James places his hand behind the YP’s head as it impacts the wall.
- [47]Mr James then drags the YP to the ground. I reject the submission from Mr James’ representative that it was a stumble or a fall. The vision clearly demonstrates that Mr James is heavier and larger than the YP, and throughout the tussle, he is clearly the physically dominant party.
- [48]Whatever struggle the YP made, it would appear from the vision to have been wholly ineffective at deterring or resisting Mr James’s obvious force.
- [49]Mr James forces the YP backwards to the ground. At this point, the YP’s head is not protected in the same fashion it was when Mr James pushed the YP against the wall. The vision shows the top/back of the YP’s head striking the concrete floor in what can only be described as a sickening impact. A recoil of the YP’s skull from the floor following the impact is clearly seen.
- [50]After turning the YP over onto his stomach and placing his body over the YP’s legs, Mr James then clearly and unmistakably forms a fist with his left hand and forcibly strikes the concrete floor next to or near the YP’s head. It is obvious that this action is not in any way at all associated with restraining the YP. It is obviously an act of aggression on the part of Mr James.[9] Mr James does this roughly simultaneous with the placing of his own head near the YP’s head as if to say something in the YP’s ear.
- [51]The CCTV vision demonstrates to me, quite clearly, that Mr James overstepped the bounds of reasonable force from the moment he had placed the YP into the separation cell.
- [52]On the vision that I viewed there was no threat or aggression evident from the YP’s posture that justified what followed. I wholly accept that Mr James may well have snapped in the tension of the moment. The gesture of slamming his fist into the floor in an action unrelated to restraint would be consistent with this.
- [53]Having regard to the vision and all of the submissions made, I consider that Mr James has used unreasonable force to restrain the YP. It follows such force would not be authorised or justified.
- [54]In those circumstances, I consider that the conclusion of the decision-maker to substantiate allegation 1 was plainly open and, in my view, it was fair and reasonable.
Allegation 3
- [55]In relation to the next allegation (which for the purposes of consistency, I refer to as allegation 3), it is alleged that:
On 17 February 2019, you completed a workplace injury, illness and incident report form which contained false and/or misleading information concerning the incident involving the young person.
- [56]There is no dispute that Mr James sustained a fracture to his left hand. It was conceded from the bar table at the hearing that the fracture was sustained when Mr James struck the concrete floor with his left hand in this incident. Ultimately, whether it was a fist, or a partial fist (or a ‘closed hand’) is irrelevant.
- [57]On the day he sustained the injury Mr James made a claim for Workers' Compensation benefits. His claim form, which is annexed to his submissions (at annexure 4) is a document that does not lend itself to the provision of a great deal of information. At paragraph 6 of that form Mr James says that he was stabilising a young person (or words to that effect) and says, "fell on left hand knuckles".
- [58]I note that Mr James did not have the benefit of the CCTV footage at the time he completed this form. The department actively challenged Mr James' workers' compensation claim and apparently showed the CCTV footage to the relevant claims persons at WorkCover Queensland ('WorkCover').
- [59]WorkCover subsequently questioned Mr James about the CCTV footage and it was submitted at hearing (and not contested) that he acknowledged the content of the CCTV footage when questioned.
- [60]Notwithstanding that the CCTV footage plainly demonstrates that Mr James struck the floor with some force with his fist in a manoeuvre unrelated to the restraint of the YP, WorkCover accepted the application for compensation and the department did not seek a review or appeal the decision.
- [61]I find this an unusual conclusion given e.g. the provisions of s 129 of the Workers' Compensation and Rehabilitation Act 2003 (Qld), which deals with self-inflicted injuries. But ultimately, my views with regard to the acceptance or otherwise of the workers' compensation claim are irrelevant to this appeal.
- [62]To date, Mr James’ only response to the allegation that he put false and/or misleading information in his workers compensation application has been to repeatedly insist that the CCTV footage does not show him deliberately self-inflicting the injury to his hand. This submission is utterly untenable given the CCTV footage plainly shows him deliberately striking the concrete floor with his hand.
- [63]But importantly, whether Mr James concedes he struck the floor or not is not the point.
- [64]The allegation confronting Mr James was that he made a workers' compensation claim that contained ‘false and/or misleading information’. In my view, such an allegation requires Mr James to have been intentionally dishonest or deceptive. Such an allegation would not, for example, capture behaviour that included an honest or mistaken omission of a fact or facts in relation to an incident.
- [65]The CCTV vision shows Mr James was involved in a relatively intense physical altercation with the YP that lasts only a matter of a minute or so. It is likely in my view that even in the hours and days after this incident, Mr James may not have easily recalled his exact movements.
- [66]At the time of making his claim, Mr James did not have the benefit of the CCTV footage. While it remains possible that he purposefully did not include the fact that he had struck the floor with his left hand in his claim for compensation, it is equally possible in my view that he may not have even recalled that aspect of the very brief and intense melee in which he was involved.
- [67]While I can understand that the decision-maker rejected Mr James’ bizarre denial of the undeniable, the untenable response of itself does not get the matter to proof of ‘false and/or misleading’ behaviour in my view.
- [68]In my view, the decision-maker, notwithstanding the untenable response by Mr James, ought to have also considered the likelihood that Mr James may have inadequately but innocently misdescribed his injury. This is something that commonly occurs, particularly with injuries arising from incidents that involve trauma and that unfold quickly.
- [69]While it cannot be said for certain that Mr James was being honest in this instance, one can be no more certain that he was being dishonest in my view.
- [70]I consider that the substantiation of allegation 3 in all of those circumstances was unsound and was not open to the decision-maker. It follows that I consider that the finding in respect of allegation 3 is not fair and reasonable on those facts.
Order
- [71]In all of the circumstances, I make the following orders:
- The decision appealed in relation to allegation 1 is confirmed; and
- The decision appealed in relation to allegation 3 is set aside and substituted with a decision that allegation 3 is not substantiated.
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 562B.
[2] Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[3] Industrial Relations Act 2016 (Qld) s 562B(3).
[4] Industrial Relations Act 2016 (Qld) s 562C.
[5] Affidavit of Mr Keith James dated 27 July 2020 at paragraph 36.
[6] Transcript dated 21 July 2021, pages 48-53.
[7] Attachments 2 and 3 to the submissions of Mr James filed 17 February 2021.
[8] In a statement attached to Mr James’ submissions dated 17 February 2021 at Annexure 3.
[9] Whether it is aggression or ‘frustration’ as contended by the representative for Mr James makes no material difference in this context. It is a use of force regardless, though to my observation it was aggression.