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  4. Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships) (No. 2) - [2021] QIRC 333

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Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships) (No. 2)[2021] QIRC 333

Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships) (No. 2)[2021] QIRC 333

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships) (No. 2) [2021] QIRC 333

PARTIES:

Fischer, Ineke

(Appellant)

v

State of Queensland (Department of  Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships)

(Respondent)

CASE NO:

PSA/2021/245

PROCEEDING:

Public Service Appeal – Fair treatment decision

DELIVERED EX TEMPORE ON:

16 September 2021

HEARING DATE:

16 September 2021

MEMBER:

Dwyer IC

HEARD AT:

Brisbane

ORDER:

  1. The decision appealed against is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE – appeal – allegations of verbal and physical abuse – allegations denied – standard of proof – eye witnesses – decision open on the evidence – decision fair and reasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld) ss 562A, 562B, 562C

Public Interest Disclosure Act 2010 (Qld)

CASES:

Briginshaw v Briginshaw (1938) 60 CLR 336

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018

Tan v Xenos (No 3) (Anti-Discrimination) [2008] VCAT 584

Reasons for Decision

Delivered ex tempore on 16 September 2021

Background

  1. [1]
    Ms Ineke Fischer is employed as a Residential Care Officer with the Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships (‘the Department’). Ms Fischer works in a residential care environment where she is responsible for the supervision and care of persons with physical and intellectual disabilities.
  1. [2]
    In December 2019, Ms Fischer became the subject of certain allegations, namely that she had engaged in physical and verbal abuse of a client in her care.
  1. [3]
    The Department obtained incident reports from two eyewitnesses and shortly after referred the matter to both the Crime and Corruption Commission (‘CCC’) and the Queensland Police Service (‘QPS’). Ms Fischer was subsequently charged in early 2020 with assault. Ms Fischer pleaded not guilty at the first mention of the matter, and it was subsequently adjourned for later hearing.
  1. [4]
    As a consequence of the pending criminal proceedings, the Department did not commence any investigation or disciplinary process until that process concluded. While awaiting the conclusion of the criminal proceedings, Ms Fischer was stood down from her employment for a lengthy period and has not otherwise returned to residential care work.
  1. [5]
    In or about January of 2021, over 12 months after the incidents that are the subject of the allegations, the Department was advised by Ms Fischer that the QPS were not proceeding with the charge against her. Consequently, the Department then commenced a formal investigation into the allegations. The investigation was conducted by an officer of the Department’s Ethical Standards Unit.
  1. [6]
    The investigator did not interview the eyewitnesses. The investigator elected instead to rely on evidence that was obtained contemporaneous to the relevant events, namely, the incident reports provided by witnesses and also the statements taken by the QPS.
  1. [7]
    According to the investigation report, the rationale for not interviewing the eyewitnesses for the purposes of conducting the investigation was that the events had occurred over a year before, and the investigator took the view that the contemporaneous statements and the QPS statements would be more reliable.
  1. [8]
    Additionally, Ms Fischer elected not to be interviewed by the investigator but instead, relied on her transcript of the interview that she provided to the QPS.
  1. [9]
    Upon completion, the investigation report concluded that certain aspects of the allegations being investigated were capable of substantiation. Consequently, on 7 May 2021 Ms Fischer was invited to show cause why she should not be subject to discipline.
  1. [10]
    The allegations upon which she was required to show cause were relevantly as follows:

Allegation 1

It is alleged that on 11 December 2019, Ms Fischer physically abused and/or physically mistreated a residential care client by:

  • slapping his legs whilst doing up his shoelaces;
  • slapping him with an open palm on the side of the face; and
  • jabbing/poking him multiple times in the back with two fingers.

Allegation 2

That on 11 December 2019, Ms Fischer engaged in inappropriate verbal conduct towards the residential care client by:

  • calling him a cunt; and
  • telling him to “move it, you little bastard” or words to that effect.
  1. [11]
    Ms Fischer responded to the show cause letter via her union in correspondence dated 31 May 2021. Ms Fischer essentially denied the allegations in their entirety. Notably, in providing her response to the show cause letter, Ms Fischer did not offer any explanation e.g. like an error by the witnesses in what they saw and heard, or a malicious motive of a witness, or an innocuous context around the allegations.[1]
  1. [12]
    Following receipt of the response to the show cause letter, the Department wrote to Ms Fischer on 1 July 2021 and informed her that the allegations were substantiated (‘the decision’). The decision letter also informed Ms Fischer that the Department was giving consideration to terminating her employment and invited her to show cause why that action should not be taken.
  1. [13]
    Ms Fischer now appeals the decision. For clarity, the decision that is the subject of this appeal is the decision to substantiate the allegations. The proposed penalty does not form part of the decision or a decision in this matter.

What decisions can the Industrial Commissioner make?

  1. [14]
    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.[2] Importantly, appeals of this nature are not a re-hearing of the matters.[3] 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.[4]
  1. [15]
    More generally on the nature of a review of this type, findings reasonably open to a decision-maker are not expected to be disturbed on appeal. Even if a reviewer may not agree with the decision under review, it does not make the decision in and of itself unreasonable.
  1. [16]
    The Act allows for limited forms of orders in respect of these appeals. I can make the following orders:[5]
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    for an appeal against a promotion decision – 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
  1. (c)
    for another appeal – set the decision aside and substitute another decision.

Submissions of the parties

  1. [17]
    Following the issuing of directions from my chambers, the parties provided extensive written submissions. I have had regard to those submissions in full, but I do not propose to reproduce them in detail in this decision.
  1. [18]
    At the commencement of the hearing the Department raised an objection to certain matters raised by Ms Fischer in her reply submissions that were filed on 14 September 2021. The reply submissions contained factual assertions and explanations about the allegations that had not previously been offered in the show cause process.
  2. [19]
    In particular, at paragraph 2 of the reply submissions, there was a suggestion or a theory as to the motives of one of the eyewitnesses with respect to the matters she allegedly saw.
  1. [20]
    Secondly, in paragraph 4, in response to allegations about the verbal abuse, there was an explanation offered that the witness may have misheard or misunderstood a phrase in the Dutch language that had a similar sound to it.
  1. [21]
    Finally, the submission was made in respect of alleged inconsistencies in paragraph 6 of the reply submissions in respect of the evidence of another witness.
  1. [22]
    It is trite to observe that in all but the most exceptional of cases, I cannot have regard to facts that were not before the decision-maker. While I do not draw any adverse conclusion about the late introduction of these matters, I cannot have regard to those matters in contemplating the reasonableness or otherwise of the decision made by the decision-maker.
  1. [23]
    The parties had further opportunity to respond to questions and expand on their submissions orally at hearing, to address matters that I raised with them, and also matters that they wished to emphasise in respect of their written submissions.

Consideration

  1. [24]
    Both of the allegations in this matter arise out of events that occurred on 11 December 2019. The allegations are essentially divided into two categories, namely: the first allegation deals with allegations of physical abuse, and the second allegation deals with allegations of verbal abuse. The allegations are purportedly supported by the eyewitness accounts of two witnesses.
  1. [25]
    The first witness is not identified in these reasons because she has made a Public Interest Disclosure (‘PID’) under the Public Interest Disclosure Act 2010 (Qld). By consent of the parties that witness will hereafter be referred to as ‘the discloser’.
  1. [26]
    The discloser was an employee of another agency who was in attendance at the residence where Ms Fischer worked on the 11 December 2019. The second eyewitness is Mr Anthony Breese, a team leader with the Department, who also visited the residence at a later time on the day in question. They each allege they observed different incidents.
  1. [27]
    The discloser provided a verbal report to her supervisor on the date of the alleged incident on 11 December 2019, and subsequently a written report to her employer on 12 December 2019. The report sets out her observation of the physical and verbal abuse she allegedly observed. The discloser subsequently provided a statement to the QPS on 22 January 2020 which, in all material ways, was consistent with her contemporaneous report provided earlier in December.
  1. [28]
    Mr Breese provided a written incident report about physical abuse that he says he observed on 11 December 2019. He did not provide this report until 16 December 2019. He explains he did not initially consider what he observed to be very serious, though it still concerned him. He states that he decided to report it when he heard about the other allegations made by the discloser.
  1. [29]
    Mr Breese also subsequently gave a statement to the QPS which is, in all material ways, consistent with his earlier written incident report.
  1. [30]
    I note that there were other witness statements taken. As I commented to the parties during the hearing, in my view, the additional witness statements offer little to no relevant insight into the matters that are the subject of the allegation because none of those additional witnesses were eyewitnesses to the matters that are the subject of the allegation. Opinions and speculation about Ms Fischer’s mood on the day in question is of no assistance.
  1. [31]
    By contrast, the discloser and Mr Breese were both eyewitnesses. Both of them gave statements contemporaneous to the relevant events, and both of them gave subsequent consistent statements to the QPS.
  1. [32]
    For the most part, in her response to the show cause process and in her statement to the QPS, Ms Fischer simply denies the conduct that is alleged. Ms Fischer, through her union, submits both in written submissions and in submissions today, that the evidence of the eyewitnesses ought not to be considered sufficient to substantiate the allegations.
  1. [33]
    There are two main submissions upon which the union acting for Ms Fischer says this: firstly, it is submitted by Ms Fischer’s union that the statements do not meet the higher standard set out in Briginshaw v Briginshaw ('Briginshaw').[6] I do not accept this.
  1. [34]
    Briginshaw does not establish a third standard of proof siting between reasonable doubt and the balance of probabilities. In civil matters, the standard of proof is still the balance of probabilities. Briginshaw requires that where allegations are serious or have serious consequences (or both) the evidence relied on to make adverse findings must be sufficiently cogent.[7]
  1. [35]
    The second ground relied on by the union is that Mr Breese’s delay in reporting the incident he says he witnessed ought to undermine the cogency of his evidence, such that it should not be accepted over Ms Fischer’s. I do not accept this either. Mr Breese sets out a very plausible explanation for the (short) delay in reporting the incident. Importantly, he was demonstrably balanced and fair in his commentary about Ms Fischer’s behaviour that day.
  2. [36]
    This is a difficult matter. No doubt it was a difficult matter for the decision maker. The accounts given by the eyewitnesses starkly contrast with Ms Fischer’s denials. I do not see any evidence in the material provided by the parties that the decision maker failed to confront the contrasting evidence and to consider all possible scenarios before reaching a conclusion.
  1. [37]
    While the conclusion reached by the decision maker ultimately comes down to a consideration of the word of Ms Fischer against the word of two eyewitnesses. There was no evidence before the decision maker that would cause any suspicion that either of the eyewitnesses were motived by any malice or ill will towards Ms Fischer, and nor is there any suggestion that either of the eyewitnesses were known to each other or colluded in giving their account of two wholly separate events.
  1. [38]
    It must also be remembered that balanced (somewhat precariously) between these conflicting accounts and interests are the rights and interests of the client i.e. a cognitively impaired gentlemen who is one of society’s most vulnerable people. In considering the extent to which an uncorroborated statement can be given weight, the decision-maker invariably must give consideration of the rights of all persons directly impacted by the decision.
  1. [39]
    In all of these circumstances, given the contemporaneous and consistent accounts of the two independent eyewitnesses in respect of the two events, and given that there is no evidence that might suggest a malicious or other improper basis for those independent witnesses giving those accounts, I consider that the decision of the decision maker was reasonably open to them and, it follows, I consider the decision was fair and reasonable.
  1. [40]
    Before turning to the disposition of this appeal, I consider it necessary to make comment about the proposed penalty. In doing so, I note that I am not in any way endowed with jurisdiction to determine the sanction to be imposed on Ms Fischer, but it would be remiss for me not to place on record some concerns I hold with respect to any future decision made in relation to this matter.
  1. [41]
    I preface the following remarks by saying that my concerns do not in any way affect my conclusion above as to the reasonableness of the decision to substantiate the allegations.
  1. [42]
    While I consider that the statements provided were a sufficient basis to reasonably consider the allegations substantiated, I note with some concern that the investigator did not interview the eyewitnesses. I note that the QPS did not proceed with the criminal charge. There is no evidence before me about the cause of the demise of the criminal proceedings, and it does not assist to speculate why the police did not proceed. There may be any number of reasons why the QPS made this decision.
  1. [43]
    But in that context, the decision by the investigator not to directly interview the eyewitnesses (upon whose statements the conclusions in this matter are based) gives rise to a concern on my part that the evidence (of the discloser in particular) is untested by the Department.
  1. [44]
    While there are two incidents on 11 December 2019, without reliable evidence of the discloser, the evidence of Mr Breese relates to the less serious conduct that even he did not consider serious enough to report initially. It was conduct that, on its own, might likely warrant a much lesser sanction than termination of employment.
  1. [45]
    In my view, the Department ought not to consider any serious sanction against Ms Fischer until such time as they have spoken to the discloser and can be satisfied of the veracity of the discloser’s account of events as set out in her various statements.
  1. [46]
    It would be deeply unfortunate for all parties in this matter if Ms Fischer was dismissed from her employment only for it to transpire at e.g. a subsequent unfair dismissal proceeding, that the discloser fails to cooperate or give convincing evidence. No decision has been made about Ms Fischer’s employment at this time. There is still time (and room) for the Department to be better informed before they potentially take the significant step of ending the employment of Ms Fischer.

Order

  1. [47]
    In all of the circumstances, I consider that the decision under appeal is fair and reasonable for all of the reasons that I have set out above, and I make the following order:
  1. The decision appealed against is confirmed.

Footnotes

[1] With one exception – Ms Fischer alluded to the fact that she will, from time to time, ‘tap’ a resident’s leg to signal which leg they need to lift so that she can put a shoe on. She denied ever slapping a resident’s leg.

[2] Industrial Relations Act 2016 (Qld) s 562B.

[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[4] Industrial Relations Act 2016 (Qld) s 562B(3).

[5] Industrial Relations Act 2016 (Qld) s 562C.

[6] (1938) 60 CLR 336.

[7] Tan v Xenos (No 3) (Anti-Discrimination) [2008] VCAT 584, [75] – [83].

Close

Editorial Notes

  • Published Case Name:

    Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships) (No. 2)

  • Shortened Case Name:

    Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships) (No. 2)

  • MNC:

    [2021] QIRC 333

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    16 Sep 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Tan v Xenos (No 3) [2008] VCAT 584
2 citations
Jump To
Cite 1 - [2008] VCAT 584
Cite 2 - [2008] VCAT 584

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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