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  4. O'Neill v State of Queensland (Queensland Ambulance Service) - [2022] QIRC 241

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O'Neill v State of Queensland (Queensland Ambulance Service)[2022] QIRC 241

O'Neill v State of Queensland (Queensland Ambulance Service)[2022] QIRC 241

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

O'Neill v State of Queensland (Queensland Ambulance Service) [2022] QIRC 241

PARTIES:

O'Neill, Daniel

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO:

PSA/2022/1

PROCEEDING:

Public Service Appeal – Appeal against a disciplinary penalty decision

DELIVERED ON:

22 June 2022

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision issued on 5 January 2022 is revoked.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a disciplinary penalty decision – disciplinary decision made pursuant to s 18B of the Ambulance Service Act 1991 (Qld) – where allegation substantiated – consideration of penalty – whether penalty was proportionate to substantiated conduct – whether respondent gave adequate consideration to matters raised by appellant in response to the proposed disciplinary action – where decision was open to be made on the information before the decision maker – where decision fair and reasonable – where decision appealed against confirmed – where stay of decision revoked

LEGISLATION:

Ambulance Service Act 1991 (Qld), s 18A, s 18B

Industrial Relations Act 2016 (Qld), s 562B, s 562C

Public Service Act 2008 (Qld), s 194

Code of Conduct for the Queensland Public Service, s 1.5

CASES:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Roper v State of Queensland (Queensland Health) [2021] QIRC 137

Reasons for Decision

Introduction

  1. [1]
    Mr Daniel O'Neill is employed by the State of Queensland (Queensland Ambulance Service) ('the Service'), in the position of Clinical Support Officer, AS42/3 in Gladstone. Mr O'Neill appeals a disciplinary decision pursuant to s 194(1)(b)(i) of the Public Service Act 2008 (Qld) ('the PS Act').
  1. [2]
    Mr O'Neill has been employed with the Service for a period of over 15 years and his employment is regulated pursuant to the provisions of the Ambulance Service Act 1991 (Qld) ('the Ambulance Service Act').[1]
  1. [3]
    By letter dated 9 December 2021, the decision maker determined to impose disciplinary action on Mr O'Neill of a reduction in classification level from Clinical Support Officer and consequential change of duties to Advanced Care Paramedic and a reprimand, pursuant to s 18B of the Ambulance Service Act.
  1. [4]
    On 4 January 2022, Mr O'Neill filed an appeal against the disciplinary decision pursuant to s 194(1)(b)(i) of the PS Act, stating that the decision was not fair and reasonable.
  1. [5]
    On 5 January 2022, this Commission ordered that the decision the subject of this appeal be stayed until further determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act').
  1. [6]
    The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
  1. [7]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[2]  Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [8]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[3] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[4]
  1. [9]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [10]
    By letter dated 5 February 2021, the decision maker determined that the following allegation against Mr O'Neill was substantiated:

It is alleged that on or about 6 February 2020, Officer O'Neill engaged in inappropriate conduct by making two inappropriate statements whilst facilitating a Tier 1 training course at Gladstone Ambulance Station.

  1. [11]
    Mr O'Neill filed a public service appeal in respect of the decision substantiating the allegation. A decision was issued by the Commission on 3 November 2021, confirming the decision appealed against.[5]
  1. [12]
    On 9 December 2021, the decision maker imposed a disciplinary penalty pursuant to s 18B of the Ambulance Service Act on Mr O'Neill of:
  • reduction of classification level from Clinical Support Officer (Level 4, Band 2, Increment 3 at $105,414 per annum plus 23% flexibility allowance [total remuneration $129,659.22]) and consequential change of duties to Advanced Care Paramedic (Level 2, Band 2, Increment 7 at $86,590 per annum plus 28% Aggregated Allowance [total remuneration $110,835.20]) within the Gladstone area; and
  • a reprimand.
  1. [13]
    The decision maker had regard to the following matters in support of the disciplinary penalty decision:

…

Following my earlier decision of a disciplinary finding of 5 February 2021, in accordance with section 18A (1)(g)(ii)(A) of the Act, I find that you contravened, without reasonable excuse section 1.5 of the Code of Conduct for the Queensland Public Service, which states in part:

  • Demonstrate a high standard of workplace behaviour and personal conduct —

We will:

  1. Treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own;

I have considered your response that the proposed disciplinary action of reduction in classification level and a reprimand is "overly harsh and disproportionate to the mistake" and that in your view "a formal admonishment or reprimand would achieve a reasonable balance between justice and punishment".

Furthermore, I have carefully considered the effect of the proposed disciplinary [action] and its likely impact on you. I have considered, amongst other things the financial impact of a reduction in classification level as well as your statement that you have suffered significant financial detriment due to seeking legal advice.

Whilst I have considered a lesser form of disciplinary action, I believe this action is reasonable and appropriate having considered the inappropriateness of the conversations you had in front of numerous course participants while holding the position of Clinical Support Officer (CSO).

Further, the CSO Role Description clearly articulates:

  • As a leader, actively demonstrate and promote the QAS's approach of zero tolerance towards violence and commit to supporting those affected by domestic and family violence in accordance with QAS policies and mechanisms. Model and influence a workplace culture of gender equality respectful relationships, diversity, inclusion, employee safety and support; and
  • Fulfil the responsibilities of this role in accordance with Queensland Public Service and QAS values.

Given you mention your long tenure with the QAS, some 14 years, approximately 12 at the time of the incident, it would be reasonable to assume that you would be aware of the authority you had in the position of CSO and the influence your training and responses had on others, particularly subordinate class participants. Further, within that position you should have been aware that providing participants content beyond the permitted curriculum may inadvertently or otherwise place them and others at risk.

As a QAS employee in a supervisory role, you occupy a unique position of trust and responsibility amongst other QAS staff. The inappropriateness of your actions in the workplace did not project the desired image of a QAS employee in such a position.

It is evident that while performing the CSO role you have failed to model the culture expected of such a leadership role. I acknowledge your remorse for the situation as outlined in your response. However, the autonomy and influence provided by positions of leadership such as the CSO is not compatible with the behaviour you exhibited.

By undertaking an Advanced Care Paramedic role, I am confident you will gain a greater appreciation of the unique position all QAS employees hold within the workplace and wider community.

Relevant legislation

  1. [14]
    Section 18A of the Ambulance Service Act provides for the grounds for discipline as follows:

18A  Grounds for discipline

  1. (1)
    The chief executive may discipline a service officer if the chief executive is reasonably satisfied the officer has—
  1. (a)
    performed the officer’s duties carelessly, incompetently or inefficiently; or
  2. (b)
    been guilty misconduct; or
  3. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  4. (d)
    contravened, without reasonable excuse, a direction given to the officer as a service officer by a responsible person; or
  5. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the officer’s duties; or
  6. (f)
    contravened, without reasonable excuse, a requirement of the chief executive under section 13A(1) in relation to the officer’s appointment by, in response to the requirement—
  1. (i)
    failing to disclose a serious disciplinary action; or
  2. (ii)
    giving false or misleading information; or
  1. (g)
    contravened, without reasonable excuse, a provision of this Act or an obligation imposed on the person under—
  1. (i)
    a code of practice; or
  2. (ii)
    a code of conduct—
  1. (A)
    approved under the Public Sector Ethics Act 1994; or
  2. (B)
    prescribed under a directive of the commission chief executive under the Public Service Act 2008; or
  1. (iii)
    an industrial instrument.
  1. (2)
    A disciplinary ground arises when the act or omission constituting the ground is done or made.
  2. (3)
    Also, the chief executive may—
  1. (a)
    discipline a service officer under subdivision 2 if a ground mentioned in subsection (1) exists; or
  2. (b)
    discipline a former service officer under subdivision 3 or 4 on the same grounds mentioned in subsection (1).
  1. (4)
    If the chief executive is contemplating taking disciplinary action against a service officer in relation to performance or conduct that the chief executive considers may have been influenced by the officer’s health, or on the ground of absence from duty, the chief executive may—
  1. (a)
    appoint a medical practitioner to examine the officer and to give the chief executive a written report about the officer’s mental or physical condition, or both; and
  2. (b)
    direct the officer to submit to the medical examination.
  1. (5)
    In this section—

Misconduct means —

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

Example of misconduct —

victimising another service officer in the course of the other officer’s

employment in the ambulance service

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

  1. [15]
    Section 18B of the Ambulance Service Act provides for the disciplinary action that may be taken against a service officer generally as follows:

18B Disciplinary Action that may be taken against a service officer generally

  1. (1)
    In disciplining a service officer, the chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

Examples of disciplinary action—

• termination of employment

  • reduction of classification level and a consequential change of duties
  • transfer or redeployment to other ambulance service employment
  • forfeiture or deferment of a remuneration increment or increase
  • reduction of remuneration level
  • imposition of a monetary penalty
  • if a penalty is imposed, a direction that the amount of the penalty be deducted from the officer’s periodic remuneration payments
  • a reprimand
  1. (2)
    If the disciplinary action is taken following an agreement under section 18F(1) between the previous chief executive and the employing chief executive mentioned in the section, the chief executives must agree on the disciplinary action.
  2. (3)
    A monetary penalty can not be more than the total of 2 of the officer’s periodic remuneration payments.
  3. (4)
    Also, an amount directed to be deducted from any particular periodic remuneration payment of the officer—
  1. (a)
    must not be more than half of the amount payable to or for the officer in relation to the payment; and
  2. (b)
    must not reduce the amount of salary payable to the officer in relation to the period to less than—
  1. (i)
    if the officer has a dependant—the guaranteed minimum wage for each week of the period; or
  2. (ii)
    otherwise—two-thirds of the guaranteed minimum wage for each week of the period.
  1. (5)
    An order under subsection (1) is binding on anyone affected by it.

Note —

See the following provisions in relation to appeals against a decision of the chief executive to take disciplinary action against a person—

  1. (a)
    the Public Service Act 2008, sections 23 and 194;
  2. (b)
    the Public Service Regulation 2008, sections 5 and 7 and schedule 1, item 4.
  1. [16]
    Section 194 of the PS Act identifies the decisions against which appeals may be made and relevantly includes:

194  Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—

…

  1. (b)
    a decision under a disciplinary law to discipline—
  1. (i)
    a person (other than by termination of employment), including the action taken  in disciplining the person; or

…

  1. [17]
    The Code of Conduct for the Queensland Public Service ('Code of Conduct') applies to employees of Queensland public service agencies.[6] The Code of Conduct defines 'employees' as relevantly, any Queensland public service agency employee whether permanent, temporary, full-time, part-time or casual.
  1. [18]
    The Code of Conduct applies at all times when employees of public service agencies are, amongst other things, performing official duties. Section 1.5(a) of the Code of Conduct relevantly provides as follows:

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.

We will:

  1. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own

…

Grounds of the appeal

  1. [19]
    Mr O'Neill relies on the following grounds of appeal, as set out in his appeal notice:
  1. (a)
    the decision is excessive and disproportionate to the offence ('Appeal ground one');
  1. (b)
    the Respondent has failed to recognise that they have already subjected
    Mr O'Neill to a significant disciplinary penalty in relation to this matter ('Appeal ground two'); and
  1. (c)
    the Respondent has failed to give adequate consideration to all matters raised by Mr O'Neill in response to the proposed disciplinary action ('Appeal ground three').

Whether the decision was fair and reasonable

  1. [20]
    In determining whether the decision was fair and reasonable, consideration must be had to the allegations and the basis upon which the allegations were substantiated.
  1. [21]
    Relevantly, in this matter, regard is required to be had to the particulars of the allegation. The particulars of the allegation that were provided to Mr O'Neill in support of the allegation were as follows:
  1. (a)
    On Thursday 6 February 2020, you were the designated facilitator for a Tier 1 training course at Gladstone Ambulance Station;
  1. (b)
    Tier 1 training course participants on Thursday 6 February 2020 were identified[7] as Officer SB, Officer NW, Officer JH-G and Officer BG;
  1. (c)
    You confirmed the delivery of a training section on Occupational Safety Training (OST) at the Tier 1 training course;
  1. (d)
    Officer SB states that during the OST session, you made two inappropriate statements, to the effect of:
  1. (i)
    'If a guy is coming at you, girls can lift their shirt and it will stop them in their track as they’ll be too busy gawking at your breasts that she could then react', and
  1. (ii)
    'If out around town and a male was about to sexually assault you, all you have to do is lift your skirt and invite the perpetrator to rape you. Whilst the perpetrator has his pants around his ankles, it will give you the chan[c]e to run and escape'.
  1. (e)
    Officer NW confirmed that words similar to the above were stated by you during the training course;
  1. (f)
    Officer JH-G confirmed that words similar to the above were stated by you during the training course;
  1. (g)
    Officer BG confirmed that words similar to the above were stated by you during the training course;
  1. (h)
    Course participants stated they did not raise their concerns with you at the time because they were 'too shocked' or 'surprised';
  1. (i)
    You disputed the wording of the statements, however you advised that you did have a conversation with participants with regards to distraction and stopping an attack;
  1. (j)
    You said that the statements were not a specific direction but a technique that you were aware had been taught in other self-defence classes;
  1. (k)
    You stated that you were aware of Officer SB expressing some 'displeasure' at the comments; and
  1. (l)
    You stated that it was not your intention to offend anybody and that you were 'providing education'.
  1. [22]
    As noted above, the allegation was substantiated, and that decision was confirmed on appeal.
  1. [23]
    Accordingly, it has been found that Mr O'Neill said the words, or words to the effect, of those referred to in subparagraphs (a) to (l) above. Further, it was found that such words were said by Mr O'Neill whilst he was a designated facilitator of a training course, and that he said the words to the course participants whilst he was delivering the training.

Appeal ground one

  1. [24]
    Mr O'Neill submits that the disciplinary penalty is excessive and disproportionate to the offence committed, in summary, for the following reasons:
  1. (a)
    at the time of the offence there was no 'mens rea', rather the offence was isolated, singular, and a momentary lack of judgement;
  1. (b)
    the Respondent has not claimed that the conduct was reckless or malicious, only that it was inappropriate;
  1. (c)
    at the time the conduct occurred, Mr O'Neill was genuinely concerned for his colleague's safety and was sharing his knowledge;
  1. (d)
    there is no evidence the conduct caused widespread damage or harm to any person or entity;
  1. (e)
    Mr O'Neill has worked with the Service for approximately 15 years and has no other history of inappropriate conduct;
  1. (f)
    the disciplinary action proposed by the Respondent is serious and is one below termination pursuant to s 18B of the Ambulance Service Act;
  1. (g)
    any prospect of future promotion or alternate public service employment sought by Mr O'Neill may be compromised;
  1. (h)
    Mr O'Neill will be penalised financially in the sum of $18,824.02 per annum, and one year's application of this financial penalty alone is excessive and disproportionate to the single, isolated, and unintended offence committed;
  1. (i)
    considering the financial penalty is repetitive and perpetual, the penalty is grossly unreasonable and not objectively justifiable and may impact Mr O'Neill's financial position forever, having regard to his linked compulsory superannuation contribution;
  1. (j)
    in determining the penalty, the Respondent has relied on the Clinical Support Officer role description and there is no provision in the Ambulance Service Act which authorises discrimination based on role;
  1. (k)
    the Respondent has grossly exaggerated the effect of the conduct by erroneously using the term 'conversations' and the phrase 'numerous course participants', as the allegation relates to two inappropriate comments made during a single conversation and the training course consisted of only four participants;
  1. (l)
    two of the course participants could not recollect the second inappropriate comment;
  1. (m)
    Mr O'Neill was not the instigator of the conversation and was only responding to a dangerous action suggested by a participant;
  1. (n)
    the Respondent has used Mr O'Neill's long service history to justify the severe penalty and to assert that Mr O'Neill should somehow have knowledge of undefined risks associated with providing extra-curricular information, rather than appreciate that the conduct was isolated and uncharacteristic; and
  1. (o)
    the Respondent's lack of instruction and/or advice on dealing with situations where course participants challenge the boundaries of the curriculum contributed to
    Mr O'Neill's poor judgement.
  1. [25]
    The common law principle of 'mens rea' is ordinarily applied to some criminal offences.  It is not the case that the allegation made and substantiated by the Respondent required the establishment of a mental element (mens rea) to Mr O'Neill's conduct. For the sake of completeness, Mr O'Neill does not rely on any expert evidence or other material in support of this submission.
  1. [26]
    I do not think it is reasonable to conclude that the facts of the matter supports a conclusion that Mr O'Neill made an honest and reasonable mistake which should excuse his conduct. Mr O'Neill made several inappropriate comments whilst he was training four other employees. In these circumstances, I consider it was appropriate for the decision maker to have regard to what Mr O'Neill said to those he was training, the senior position Mr O'Neill was employed in, the responsibilities he had on the day of the conduct as the trainer facilitating Tier 1 training for four other employees and his length of service.
  1. [27]
    As noted by the decision maker, as an employee in a supervisory role, Mr O'Neill occupied a unique position of trust and responsibility. I consider it was fair and reasonable for the decision maker to conclude that the inappropriateness of Mr O'Neill's action in the workplace did not project the desired image of a QAS employee in such a position. Mr O'Neill's conduct fell well short of the behaviour expected of an employee employed at Mr O'Neill's level.
  1. [28]
    Further, I consider it was open on the evidence for the decision maker to conclude that in performing the role of CSO, Mr O'Neill failed to model the culture expected of such a leadership role.
  1. [29]
    I am satisfied that the decision maker took into account matters that fall in Mr O'Neill's favour. It is the case that regard was had to Mr O'Neill's length of service and his prior unblemished disciplinary record.
  1. [30]
    Additionally, the decision maker did have regard to the financial impact of the decision in his reasons. Mr O'Neill contends that insufficient weight was placed upon the economic impact the disciplinary action would have on him.
  1. [31]
    Relevantly, Mr O'Neill submits that the financial impact of the disciplinary action would equal to $18,824.02 per annum and that such an impact, for a period of a year is excessive and disproportionate, let alone the impact on an ongoing basis.
  1. [32]
    Whilst it is expected that a reduction in salary will have a financial impact on Mr O'Neill, such impact needs to be weighed against the nature of the substantiated conduct. I consider, having regard to the factual circumstances of the substantiated conduct, that it is not unfair and unreasonable to reduce Mr O'Neill's classification level with the consequential reduction in remuneration. Such action strikes a balance between the mitigating factors relied on by Mr O'Neill and the seriousness of the substantiated conduct.
  1. [33]
    The proposed disciplinary action ensures that Mr O'Neill retains his employment with the Respondent and does not necessarily act as an impediment to future promotion of Mr O'Neill.
  1. [34]
    Accordingly, I consider that it was open, on the material before the decision maker, to form a view that the proposed disciplinary action was fair and reasonable.

Appeal ground two

  1. [35]
    Mr O'Neill contends that he has already been subject to a disciplinary penalty in relation to this matter, stating that in February 2021, the Deputy Commissioner ordered that Mr O'Neill be transferred to an alternate work location and re-deployed to other ambulance service duties in response to this matter.
  1. [36]
    Mr O'Neill contends that the Respondent does not have authority to transfer or re-deploy him under the provisions of the Ambulance Service Act, and that by alleging this action was authorised, has misled him and denied him procedural fairness.
  1. [37]
    Mr O'Neill further submits that this action caused him psychological trauma and financial expense and inconvenience associated with the interruption of transport and domestic arrangements due to the alternate work location.
  1. [38]
    Mr O'Neill submits that the transfer and re-deployment constitutes disciplinary action, and that no other disciplinary penalty in relation to this matter is warranted.
  1. [39]
    The Respondent contends that the decision to place Mr O'Neill on other duties was separate to the decision subject to the appeal and the time period for appealing the decision expired on 27 February 2021.
  1. [40]
    In any event, the Respondent denies that it transferred or redeployed Mr O'Neill. Rather, the Respondent contends that he was placed on 'other duties'. The decision of 5 February 2021 determined that, rather than suspending Mr O'Neill from his duties, to place him on alternate duties whilst the disciplinary process was concluded or otherwise determined.
  1. [41]
    The decision of 5 February 2021 expressly stated that during Mr O'Neill's alternate duties, he would continue to receive his normal remuneration, including the aggregate shift allowance he would have otherwise been paid.
  1. [42]
    I consider that the decision of 5 February 2021, placing Mr O'Neill on alternate duties is separate to the decision which is currently subject to this appeal.
  1. [43]
    However, Mr O'Neill relies on the outcome of that decision to argue that he has already been disciplined. I reject Mr O'Neill's submission that putting him on alternate duties amounts to disciplinary action already taken against him. Placing Mr O'Neill on alternate duties whilst the disciplinary process was on foot was an administrative action rather than disciplinary action. Further, such action does not amount to a transfer or a redeployment of Mr O'Neill's employment as he contends.
  1. [44]
    Relevantly, Mr O'Neill received his normal remuneration, including his aggregate shift allowance during this period. Consequently, Mr O'Neill did not suffer any financial detriment because of the administrative action.
  1. [45]
    For these reasons, I do not accept that Mr O'Neill has already been the subject of disciplinary action.

Appeal ground three

  1. [46]
    Mr O'Neill submits that at the time of the conduct, he was dealing with a stressful family situation and suffered a momentary lapse in judgement, and, whilst the Respondent has noted this in its decision, it has failed to adequately consider the effects that stress related conditions may have on an employee's work performance. Mr O'Neill relies on the findings in the matter of Roper v State of Queensland (Queensland Health) [8] ('Roper') in this regard.
  1. [47]
    The matter of Roper referred to by Mr O'Neill, involved an appeal of a decision substantiating an allegation of misconduct and the penalty imposed. Mr Roper was a clinical nurse who worked in a Mental Health, Alcohol and Other Drugs Service Unit.
  1. [48]
    The facts of the matter in Roper are distinct from those in this matter.
  1. [49]
    An incident occurred involving Mr Roper and a patient. It was accepted that at one point, the patient had become aggressive and attempted to strike Mr Roper with a chair. The patient ultimately put the chair down and turned away from Mr Roper. Mr Roper then attempted to restrain the patient and the patient and Mr Roper engaged in a tussle. It was alleged, and found by the employer, that Mr Roper had used excessive force when attempting to restrain the patient. On appeal, IC Dwyer relevantly found:

[23] Having regard to the statements made by other staff who were present at the incident and having regard to the stills from the CCTV footage, it is my view that the restraint that Mr Roper attempted was not his last resort. At that moment, when he undertook the restraint, the patient had moved away and was not immediately threatening. At that time, Mr Roper had two other staff nearby, and whether he was aware of it or not, one of them had already activated a distress alarm. Having regard to these matters, and notwithstanding that it comes with the benefit of some hindsight, it appears to me that Mr Roper had other options at that time, but he failed to exercise them.

[24] I hasten to add this: I do not think that there was anything malicious, negligent, or wilful about Mr Roper’s conduct. I am entirely convinced that given the stressful events immediately preceding the incident, Mr Roper had a momentary lapse of judgment. I would add that this is something that is common amongst most senior, competent, and well qualified professionals in all fields. It was a simple error of judgment in my view.

[25] Given there is no evidence that Mr Roper has a history of such conduct, and the very positive and sympathetic comments made by his co-workers in their statements, I am left in no doubt that this conduct was a rare aberration in his otherwise excellent work history. While this is not relevant to the question of the finding in respect of excessive force, it is highly relevant to the question of penalty.

[26] In all of the circumstances, I consider that the decision maker’s finding that Mr Roper used excessive force was open to her on all of the evidence and it follows that I find that her decision (with respect to the substantiation of the allegation) was fair and reasonable.

  1. [50]
    Mr O'Neill relies on the passage from Roper to argue that his stress caused a similar situation which he contends is supported by IC Dwyer's finding in Roper at [24].
  1. [51]
    As can be seen by the conclusion ultimately reached by IC Dwyer in Roper, the passage relied on by Mr O'Neill did not result in a finding in favour of Mr Roper.
  1. [52]
    Unlike in Roper, Mr O'Neill was not faced with a heightened, threatening and aggressive situation in the workplace. The stress faced by Mr Roper was immediate and directly related to the situation Mr Roper found himself in. This was not the situation Mr O'Neill found himself to be in at the time he made the comments.
  1. [53]
    I consider the decision maker did have regard to Mr O'Neill's submission that he was dealing with a stressful family situation at the time of the misconduct and placed appropriate weight on that factor when considering the penalty to be imposed.
  1. [54]
    Mr O'Neill contends that he has suffered psychological stress as a result of the disciplinary process. Mr O'Neill does not rely on any material to support the nature and extent of any psychological stress, but it is accepted that such processes are, generally stressful for employees.[9]
  1. [55]
    However, the fact that a disciplinary process is, in and of itself, a stressful process is not, for the purpose of an appeal of this nature, sufficient to conclude the decision which is the subject of the appeal was not fair and reasonable.

Conclusion

  1. [56]
    For the foregoing reasons, I dismiss the appeal on the basis that the grounds relied on by Mr O'Neill are not made out. I consider that the decision was open to be made on the information before the decision maker.
  1. [57]
    Consequently, I consider that the decision was fair and reasonable.

Orders

  1. [58]
    Accordingly, I make the following orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision issued on 5 January 2022 is revoked.

Footnotes

[1] Ambulance Service Act 1991 (Qld) s 15.

[2] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[4] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[5] O'Neill v State of Queensland (Queensland Ambulance Service) [2021] QIRC 370.

[6] Public Services Agencies are defined in the sch 2 of the Public Sector Ethics Act 1994 and relevantly includes an entity established under an Act for a public, State or Local Government purpose.

[7] The officer’s names have been de-identified.

[8] [2021] QIRC 137.

[9] Borkowski v State of Queensland (Queensland Corrective Services) [2021] QIRC 330.

Close

Editorial Notes

  • Published Case Name:

    O'Neill v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    O'Neill v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2022] QIRC 241

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    22 Jun 2022

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
Borkowski v State of Queensland (Queensland Corrective Services) [2021] QIRC 330
1 citation
Jump To
Cite 1 - [2021] QIRC 330
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
1 citation
Jump To
Cite 1 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
O'Neill v State of Queensland (Queensland Ambulance Service) [2021] QIRC 370
1 citation
Jump To
Cite 1 - [2021] QIRC 370
Roper v State of Queensland (Queensland Health) [2021] QIRC 137
2 citations
Jump To
Cite 1 - [2021] QIRC 137
Cite 2 - [2021] QIRC 137

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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