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  4. The Australian Workers' Union of Employees, Queensland v State of Queensland (Queensland Health) - [2022] QIRC 36

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The Australian Workers' Union of Employees, Queensland v State of Queensland (Queensland Health)[2022] QIRC 36

The Australian Workers' Union of Employees, Queensland v State of Queensland (Queensland Health)[2022] QIRC 36

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

The Australian Workers' Union of Employees, Queensland v State of Queensland (Queensland Health) [2022] QIRC 036

PARTIES: 

The Australian Workers' Union of Employees, Queensland

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

TD/2019/106

PROCEEDING:

Application for reinstatement

DELIVERED ON:

11 February 2022

HEARING DATE:

29 June 2021

20, 21 July 2021

WRITTEN SUBMISSIONS:

24 August 2021

17 September 2021

1 October 2021

25 October 2021

1 November 2021

2 November 2021

MEMBER:

Pidgeon IC

HEARD AT:

Brisbane

ORDER:

The application is dismissed

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – UNFAIR DISMISSALS – Application for reinstatement – where the applicant was involved in an altercation – whether the applicant was provoked – whether the applicant's conduct disproportionate to provocation – whether misconduct so serious to warrant termination – whether there are other mitigating factors

LEGISLATION:

Industrial Relations Act 2016, s 316, s 317, s 320

Public Service Act 2008, s 187, s 188

Commission Chief Executive Guideline 01/17: Discipline

CASES

AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385

Gold Coast District Health Service v Walker (2001) 168 QGIG 258

Gwatking v Schweppes Australia Pty Ltd [2015] FWC 3969

Harris v Gold Coast City Council [2012] QIRC 5

Harris v Queensland Nickel Pty Ltd (2001) 169 QGIG 2

Laegal v Scening Rim Regional Council [2018] QIRC 136

Milton v TransAdelaide [2003] SAIRC 15

Selvachandran v Peteron Plastic Pty Ltd (1995) IR 371

APPEARANCES:

Mr A Santelesis for the Applicant

Mr M Moy for the Respondent

Decision

Background

  1. [1]
    Mr Perry Cleal (Member of the Applicant Union) has been employed by the State of Queensland with the Metro South Hospital and Health Service for approximately 25 years. On 21 November 2019, having been found guilty of misconduct, Mr Cleal was dismissed from his employment for 'aggressively pushing' a work colleague, Mr Eric Chiu, into a trolley in the main kitchen at the Princess Alexandra Hospital (PAH).
  1. [2]
    The dismissal followed a show cause process where Mr Cleal was asked to respond to the allegation and the proposed disciplinary action of termination.
  1. [3]
    There was a significant period of time between the dismissal and the hearing of the matter.  This is the result of a range of factors including proceedings relating to the incident in another jurisdiction; impacts of COVID-19 and availability of witnesses.
  1. [4]
    While the matter was heard in June and July, the parties continued to file closing submissions, submissions in reply and further submissions in reply until 2 November 2021.
  1. [5]
    It is uncontroversial that Mr Cleal was informed of the reason for his dismissal[1] and that the dismissal related to Mr Cleal's conduct, capacity or performance[2] and that Mr Cleal was given an opportunity to respond to the claim about the conduct, capacity or performance.[3]

Legislation and Directives

  1. [6]
    Section 320 of the Industrial Relations Act 2016 (IR Act) sets out the matters to be considered by the Commission in hearing an application under s 317.

320 Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider –

  1. (a)
    whether the employee was notified of the reason for dismissal; and
  2. (b)
    whether the dismissal related to –
  1. (i)
    the operational requirements of the employer's undertaking, establishment or service; or
  1. (ii)
    the employee's conduct, capacity or performance; and
  1. (c)
    if the dismissal relates to the employee's conduct, capacity or performance –
  1. (i)
    whether the employee had been warned about the conduct, capacity or performance; or
  2. (ii)
    whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
  1. (d)
    any other matters the commission considers relevant.
  1. [7]
    The words harsh, unjust or unreasonable are to be given their plain and ordinary meaning.[4]
  1. [8]
    The onus is on the Applicant to demonstrate that the termination (for disciplinary reasons) was harsh, unjust or unreasonable.[5] 
  1. [9]
    The relevant parts of the Public Service Act 2008 (PS Act) are:

187  Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

…

  1. (b)
    been guilty of misconduct;

188 Disciplinary action that may be taken against a public service employee

  1. (1)
    In disciplining a public service employee, the employee’s 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 public 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 employee’s periodic remuneration payments

• a reprimand

…

  1. [10]
    Commission Chief Executive Guideline 01/17: Discipline relevantly states:

15.5. Section 188 lists examples of disciplinary action that can be taken, however the decision maker is not limited to these examples. The following factors will be relevant considerations:

  1. (a)
    the seriousness of the disciplinary finding
  1. (b)
    the employee’s classification level and expected level of awareness about their performance or Code of Conduct obligations  
  1. (c)
    whether extenuating or mitigating circumstances applied to the employee’s actions
  1. (d)
    the employee’s overall work record including previous management interventions and/or disciplinary proceedings
  1. (e)
    the employee’s explanation (if any)
  1. (f)
    the degree of risk to the health and safety of employees, customers and members of the public
  1. (g)
    the impact on the employee’s ability to perform the duties of their position
  1. (h)
    the employee’s potential for modified behaviour in the work unit or elsewhere
  1. (i)
    the impact a financial penalty may have on the employee
  1. (j)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee

(k)the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.    

Mr Cleal's case

  1. [11]
    An outline of argument filed on 12 February 2021 sets out the following bases of Mr Cleal's case:
  1. the disciplinary action taken against Mr Cleal was disproportionate to the conduct alleged considering Mr Cleal only pushed Mr Chiu way from him after having been provoked and harassed;
  2. the dismissal is not for a reason which can withstand scrutiny, taking into account all of the surrounding factors including the neither Mr Chiu or Mr Sullivan were disciplined for their part in the events;
  3. the dismissal was harsh because of the social and economic circumstances of Mr Cleal, and the consequences associated with one losing their employment.[6]
  1. [12]
    The Applicant refers to Selvachandran v Peteron Plastic Pty Ltd[7] where it was said the dismissal of an employee must be

Sound, defensible or well founded.  A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason…in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred on them. The provisions must be applied in a practical and common sense way to ensure that the employer and the employee are treated fairly.[8]

  1. [13]
    The Applicant submits that for a dismissal to be for a valid reason, it must be defensible or justifiable on an objective analysis of the facts taking into account the 'entire factual matrix'[9] being, in this case, the events before the push; the push itself; and the events which occurred post the push.  Further to this, the Applicant points to the Respondent's Human Resources Policy 'Discipline' which states that the Respondent must consider 'all information'.[10]
  1. [14]
    With reference to the case of AWU-FIME Amalgamated Union v Queensland Alumina Limited[11] the Applicant submits that when the Commission is faced with a matter that involves a physical altercation in the workplace, it must consider all extenuating circumstances and not just the physical or verbal action by the employee in question:

…whether a dismissal or termination arising from a fight in the workplace is harsh unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self-defence.[12]

  1. [15]
    The Applicant submits that a key consideration for the Commission should be that Mr Cleal was provoked, and if not for the provocation, the incident would not have occurred and Mr Cleal would not have been dismissed.
  1. [16]
    Mr Cleal admits that he did push Mr Chiu away from him. The crux of Mr Cleal's argument was that his actions were taken in self-defence after having been provoked by Mr Chiu in the moments leading up to the push.
  1. [17]
    The Applicant submits that both the general definition of provocation and some relevant cases from employment law[13] establish that provocation is some form or a combination of verbal or physical actions against another individual to cause a reaction from another individual.
  1. [18]
    The Applicant submits that in the circumstances of this matter, Mr Cleal was provoked by Mr Chiu by way of a 'hip and shoulder' or nudging Mr Cleal; Mr Chiu grabbing Mr Cleal by the shoulder; and Mr Chiu grabbing Mr Cleal's shirt around the collar area and stating the Mr Cleal's 'button was undone'.  The Applicant says that Mr Cleal ignored Mr Chiu; and that Mr Chiu should not have continued his advances to toward Mr Cleal as Mr Cleal was ignoring his actions.
  1. [19]
    Further, the Applicant submits that Mr O'Sullivan was involved in encouraging Mr Chiu and therefore was a part of the provocation. 
  1. [20]
    The Applicant points to the matter of Milton v TransAdelaide [2003] SAIRC 15 (Milton), where Commissioner Dangerfield found that expecting a worker such as Mr Milton to calmly walk back and try and engage in a calm and rational conversation about the events with his colleagues was highly unlikely, and the Commissioner notes and refers to Ellaby-Hall v Holden

The conduct of the parties, including the applicant, is to be realistically assessed having regard to their particular circumstances. This requires an appreciation of the actual circumstances within the workplace and the realistic implications of the parties' conduct.[14]

  1. [21]
    In Milton, the provocation was considered by the Commissioner in finding that the dismissal was harsh

Having regard to all matters I have come to the conclusion that when viewed objectively in the light of all the relevant context and background, the misconduct of the applicant on 13 May 2002 was not so serious that it warranted summary dismissal.  At least it certainly warranted a final warning, some anger management training and in my view some other consequence such as a temporary 'classification regression'.  But to dismiss a narrowly skilled worker of 19 years' service for his admittedly inappropriate 'spur of the moment' reaction to a set of seriously provocative circumstances, strikes me as being contrary to the standards of fairness and justice that prevail in our community.  Objectively speaking I am of the view that his dismissal was at least harsh.[15]

  1. [22]
    With regard to the above, the Applicant says that it should be noted that: Mr Cleal pushed Mr Chiu away but did not continue on with any further action; Mr Cleal was 'boxed in' to the area he was in and had no other way to leave the area; it cannot be reasonably expected that Mr Cleal, having had Mr Chiu grab his collar, will just calmly tell Mr Chiu to go away, rather he would have had a sense of fear and concern and an immediate reaction to push Mr Chiu away.
  1. [23]
    Mr Cleal points to the relatively confined space the events occurred in; that his demeanour had signalled to Mr Chiu that Mr Cleal did not wish to engage with him when approached; and that Mr O'Sullivan, who was accompanying Mr Chiu had also participated in the harassment. 
  1. [24]
    Mr Cleal says that neither Mr Chiu nor Mr O'Sullivan were disciplined for their part in the events. Further to this, Mr Cleal points to three occasions of physical altercations in the workplace where those involved kept their jobs with the Respondent.[16]
  1. [25]
    It is submitted that Mr Cleal has demonstrated insight into his actions.  Throughout the process, Mr Cleal has admitted that it was inappropriate to push Mr Chiu but, by way of the show cause process, sought to explain that his behaviour was a proportionate response to harassment and provocation in the workplace.[17]  Mr Cleal says that it is unfair to draw a conclusion that he has demonstrated a lack of insight as a result of his submissions in the show cause processes defending his actions.[18]
  1. [26]
    The Applicant says that the decision maker made the decision to progress the disciplinary process without viewing the CCTV footage.  The Applicant suggests that had Mr Drummond viewed the CCTV footage, it would have been open to him to determine that the push was an appropriate response to the verbal and physical provocation.
  1. [27]
    Further, the Applicant says that in cross-examination, Mr Drummond noted that the main reasoning for the dismissal was the 'push' and not the 'provocation' leading up to it. Mr Drummond said that even if he was provoked, Mr Cleal's reaction was not appropriate.[19]
  1. [28]
    The Applicant submits that Mr Drummond did not conduct the necessary due diligence and enquiries to reveal that there had been a serious provocation against Mr Cleal.[20]
  1. [29]
    The Applicant submits that there were serious issues with the brief on the basis that it did not contain the events prior to the push within the CCTV stills marked as Attachment 2 of the brief and did not include the interaction of Mr O'Sullivan and Mr Chiu before the 'push'.[21]
  1. [30]
    The Applicant says that Mr Pritchard should have applied the usual process he described following a complaint being made and dealt with the matter 'on the ground' by attempting to resolve issues between Mr Cleal, Mr Chiu and Mr O'Sullivan.[22]
  1. [31]
    Due to the provocation, the matter should be found to be harsh, unjust and unreasonable.

Social and economic status of Mr Cleal

  1. [32]
    The Applicant refers to the case of Gwatking v Schweppes Australia Pty Ltd [2015] FWC 3969 (Gwatking) where the dismissal was found to be harsh due to the same circumstances faced by Mr Cleal.

In this case there are competing elements bearing upon this consideration.  These include the nature and extent of Mr Gwatking's employment and the impact of the dismissal upon him. In that regard, the loss of employment held by him for over 30 years, his age and relatively narrow skill set, are significant mitigating factors to be taken into account.[23]

…

I found that a valid reason for a dismissal existed but, on balance, termination was harsh given all the circumstances including the nature of the conduct, the impact upon the applicant and the long service he had given to that point.[24]

  1. [33]
    The Applicant submits that Mr Cleal is 59 years of age; has worked with the Respondent for 25 years and has a narrow skillset due to the particular roles he has undertaken with the Respondent.  Further, Mr Cleal has not been successful in finding any alternative job since his dismissal and this has been further compounded by the COVID-19 pandemic.
  1. [34]
    Mr Cleal gave evidence that he has been looking for alternative employment since March 2020; he has had to rely on family support and his savings to meet necessary expenses; has had to sell his entire share portfolio in order to maintain some form of income; and has exhausted his savings and money he received on termination.  Mr Cleal's living expenses are approximately $335 per week.[25]  Mr Cleal has also been under significant financial pressure as he was required to pay legal fees in the proceedings in Magistrates Court resulting from the matter.[26]
  1. [35]
    The Applicant submits that Mr Cleal's personal situation, along with the outcome in Gwatking means that, at the least, the dismissal should be found to be harsh. Mr Cleal is confident that the relationship with the Respondent is not broken.[27]

The Respondent's Case

  1. [36]
    The Respondent denies that the termination of Mr Cleal was harsh, unjust or unreasonable.  In its outline of argument filed on 5 March 2021, the Respondent submits that the Commission ought to find that following the show cause process:
  • the Respondent was entitled to terminate Mr Cleal's employment on the material available;
  • the termination of Mr Cleal's employment was appropriate and proportionate to the seriousness of his conduct;
  • prior to the incident for which Mr Cleal's employment was terminated, Mr Cleal had previously been warned in writing on two occasions for behaving unprofessionally in the workplace and not treating his colleagues with respect.

Valid Reason

  1. [37]
    The Respondent says that it had a valid reason for dismissal and that Mr Cleal was found to have aggressively pushed a co-worker into a trolley in the workplace while performing his duties.  The Respondent says that this led to a finding of misconduct under s 187(1)(b) of the PS Act.
  1. [38]
    The Respondent says that it was reasonable to make that finding on the basis of the evidence and material available to it, including Mr Cleal's admission that he pushed Mr Chiu. Additionally, the evidence includes the CCTV footage and images from the footage, both of which clearly showed Mr Cleal pushing Mr Chiu, and statements of witnesses whose evidence supported a finding that Mr Cleal pushed Mr Chiu.
  1. [39]
    Mr Cleal admits to pushing Mr Chiu[28] and that he pushed him backwards into the meal trolley.[29]  Mr Cleal said that Mr Chiu would have fallen into whatever was behind him when Mr Cleal pushed him.[30]  The Respondent says that the incident occurred in an environment containing heavy, sharp, hot and dangerous equipment and surfaces and this increases the seriousness of Mr Cleal's conduct.
  1. [40]
    The Respondent points to Mr Cleal's police interview with Constable Allan Brewster  which Mr Cleal stated (in his first stage show cause letter) that he wished to be 'his account' of the events of 20 July 2019.[31]  The Respondent specifically points out Mr Cleal's description of the push of Mr Chiu: "So I pushed the hands away and pushed through the hands, and I pushed him on the chest with both my palms – which is a martial arts technique – and I pushed him back".[32]
  1. [41]
    Mr Cleal describes the push further in that interview

I'm waiting for the line to start, you know, and then he starts to go grab 'round my throat. And then I just instinctively – it's just part of my training.  I've been doing martial arts for 23 years.

…

Someone comes up behind me and then puts their hands – starts to put their hands around my neck, it's just automatic for me.  I just swung around with my hands up and then I pushed him back, just to get him off me, get him away from me.[33]

  1. [42]
    The Respondent disputes Mr Cleal's submission that he was provoked or taunted by Mr Chiu and/or Mr O'Sullivan. However, the Respondent says that in any event, even if Mr Cleal is found to have been taunted or provoked, or that the interaction was instigated by Mr Chiu and/or Mr O'Sullivan, Mr Cleal's conduct was entirely disproportionate and inappropriate.[34]
  1. [43]
    The Respondent points to the aggression in the push and says that the CCTV footage shows that the push involved a significant amount of force and occurred approximately 1.5 to 2 metres away from where Mr Cleal had been standing when the provocation from Mr Chiu was alleged to have occurred. Mr Cleal admitted that his push of Mr Chiu occurred after Mr Chiu's alleged provocation had finished.[35]
  1. [44]
    The Respondent says that prior to Mr Cleal's push of Mr Chiu, Mr Chiu was no longer anywhere near Mr Cleal's workspace and that there was no reason by Mr Cleal could not have returned to this place on the line, rather than extend his arms forcefully and push Mr Chiu into the meal trolley.  The Respondent says that by the time of the push, Mr Cleal admits that the provocation had finished and Mr Chiu was no longer within Mr Cleal's personal work space.[36]

Alleged Provocation

  1. [45]
    The Respondent disputes that Mr Cleal was provoked and says that if there was any provocation from Mr Chiu and/or Mr O'Sullivan, it was not sufficient to make Mr Cleal's dismissal harsh, unjust or unreasonable.
  1. [46]
    The Respondent rejects the Applicant's argument that 'but for' the approach to Mr Cleal, the incident would not have occurred and says that on that argument, any prior activity which could be said to have led to Mr Chiu interacting with Mr Cleal could excuse the conduct. 
  1. [47]
    The Respondent says that the decision maker, Mr Drummond confirmed under cross-examination that he understood that he needed to know if there was any circumstance that could excuse Mr Cleal's behaviour.[37]  Mr Drummond decided that Mr Cleal could have stopped the interaction with Mr Chiu other than by pushing Mr Chiu[38] and therefore the events leading up to the push did not excuse the behaviour.
  1. [48]
    The brief considered by Mr Drummond stated at paragraph 5 of the background to the briefing note 'Mr Cleal claimed that Mr Chiu put his hands on Mr Cleal's shoulder and to his throat…'.[39]
  1. [49]
    Prior to that brief, Mr Drummond had been provided with a Suspension Brief which include the Riskmans logged by Mr Cleal and Mr Chiu.[40]  Mr Cleal's Riskman says that Mr Chiu 'put his hands to my neck and said I hadn't done my buttons up on my shirt and proceeded to grab my shirt top'.[41]
  1. [50]
    The Respondent says that when put in context, the events preceding the push do not amount to provocation, or amount to provocation of the most minor variety and do not justify the push.
  1. [51]
    Further to that, the Respondent says that Mr Cleal's story about the alleged provocation was continually evolving from the time of the incident, right up to the hearing of the matter. By way of the example, the Respondent says that Mr Cleal did not mention Mr O'Sullivan in his show cause responses or the police interview but has raised his involvement as being central to the matter during the course of this hearing:

[Mr Moy] And did you hear Mr O'Sullivan say anything?

[Mr Cleal] He was laughing. I could hear laughter, and he was saying something to Eric, but because Peter was, basically a metre and a-half behind Eric, and there was a lot of ambient noise around, I didn't hear absolutely what Peter was saying. But he was talking. I heard that.

[Mr Moy] He was talking. You heard that?---

[Mr Cleal] Well, I heard him saying something. I don't know what exactly - what it was he was saying.[42]

…

[Mr Moy] But you don't remember any words at all?---

[Mr Cleal]  Bits and pieces, but not - not- - -

[Mr Moy]  What words do you remember him saying?---

[Mr Cleal] "Yeah, well, what about his buttons, mate? You know what I mean?- - -

…

[Mr Moy] You remember him saying that?

[Mr Cleal] Well, I do now. Yes.[43]

…

[Mr Moy] And you mentioned just before that Peter said something about, "Yeah, his buttons are undone." I might have been - I don't want to misquote you, but - - -?---

[Mr Cleal] I said, "what about his buttons?" is what Peter said.[44]

  1. [52]
    The Respondent says that it cannot understand how that evidence can be used against the Respondent when it was never put to it during the show cause process.  Mr Cleal had viewed the CCTV footage with his Union representatives prior to responding to the show cause letter and did not raise Mr O'Sullivan's involvement.[45]  Mr Cleal said that he knew that he was not limited in responding to the allegations against him, but he still did not mention Mr O'Sullivan in his first and second show cause responses.[46]
  1. [53]
    The Respondent says that Mr Cleal has attempted to involve Mr O'Sullivan as a provocateur in order to convince the Commission that the provocation was worse than it was.  Given that Mr Cleal repeatedly said that the reason he had not mentioned Mr O'Sullivan in his show cause responses or in the police interview was that he didn’t realise his involvement until viewing the CCTV footage, but it later became clear that he had viewed the footage prior to providing the responses, the Respondent says that Mr Cleal invented this evidence.[47]
  1. [54]
    With regard to Mr O'Sullivan, the Respondent says that there is no evidence that Mr O'Sullivan encouraged Mr Chiu or participated in any alleged provocation of Mr Cleal on 20 July 2019.  Mr O'Sullivan's position in the kitchen near Mr Cleal was in keeping with his role as the 'runner'[48] and he was not simply standing there waiting for something to happen between Mr Chiu and Mr Cleal as alleged by Mr Cleal.  Under re-examination, Mr Cleal agreed that Mr O'Sullivan was standing in the correct place but when re-asked the same question by his representative, gave a different answer.[49]
  1. [55]
    Mr O'Sullivan's evidence was that the reason he was standing where he was standing and looking in the direction he was looking was that he was waiting for the line to start.[50] The Respondent points to the CCTV footage which showed Mr O'Sullivan performing his role from the location he was standing during the incident. Further, Mr Pritchard confirmed that this was the appropriate location for Mr O'Sullivan to be standing in to perform his role.[51] Ms Maher said in her affidavit that Mr O'Sullivan and Mr Chiu were waiting for the line to start and this was not challenged under cross-examination.[52]
  1. [56]
    Mr O'Sullivan's evidence was that he was not talking to Mr Chiu about Mr Cleal as they entered the kitchen[53] and that he did not see Mr Chiu touching Mr Cleal.[54]
  1. [57]
    Mr Cleal agreed that the CCTV footage did not show any provocation or taunting other than one instance where Mr O'Sullivan tapped Mr Chiu on the arm, which Mr Cleal said was a taunt of him.[55]
  1. [58]
    With regard to Mr O'Sullivan's involvement, it is difficult for Mr Cleal to argue that he was provoked to act by something he was unaware of at the time he acted.[56]
  1. [59]
    Mr Drummond decided that the statements of witnesses and the stills of the CCTV footage made it clear what had happened between Mr Cleal and Mr Chiu.[57]
  1. [60]
    Mr Cleal's evidence was that it was not anything Mr Chiu said that was threatening, but that that he did say something about Mr Cleal's buttons at the same time as putting his hands on Mr Cleal.[58]
  1. [61]
    The evidence before the Commission was that Mr Cleal did not have a bad working relationship with Mr Chiu, there had been no prior negative workplace incidents with Mr Chiu and there had been no prior attempts from Mr Chiu to harm Mr Cleal.  Mr Cleal had no reason to fear Mr Chiu.[59]  
  1. [62]
    Further to this, the evidence before the Commission indicated that there was nothing about Mr Chiu's character or reputation that should have caused Mr Cleal to be fearful of Mr Chiu.  Mr Pritchard, manager of the area for approximately three years prior to the incident, gave evidence that there had never been any complaints about Mr Chiu's conduct at work[60] or his conduct towards employees.[61]
  1. [63]
    The Respondent says that the evidence demonstrates that Mr Chiu was very surprised, shocked and upset by Mr Cleal's conduct and was physically injured.[62] 
  1. [64]
    The Respondent argue that Mr Cleal's actions were not proportionate to the events leading up to them and that his behaviour constitutes occupational violence and is intolerable in the workplace.
  1. [65]
    The Respondent says that it cannot tolerate violence in the workplace and that it has an obligation not to expose its workers, or patients in the public healthcare system, to a risk of harm.[63]
  1. [66]
    The Respondent points to 'clear authority' that fighting is unacceptable conduct in the workplace, and that while questions of provocation and self-defence are relevant, they cannot mitigate conduct so as to lead to a finding that dismissal is not called for.[64]
  1. [67]
    Mr Drummond has given evidence that he could not ensure that Mr Cleal would not pose a further risk to the safety and wellbeing of employees, patients and their families.[65]  Given this, any other penalty would be inappropriate.
  1. [68]
    The Respondent says that Mr Cleal had previously received warnings and that the conduct subject of the warnings was entirely related to the type of conduct for which Mr Cleal was dismissed, being unprofessional behaviour in the workplace and not treating colleagues with respect.  The conduct on 20 July 2019 demonstrated an escalating pattern of behaviour.  In response to the Applicant's submission that the warnings were not communicated to Mr Cleal, the Respondent says that warning letters were communicated to Mr Cleal.[66]
  1. [69]
    In addition to the conduct subject of the formal written warnings, the Respondent says that Mr Cleal made a threat of physical violence to another employee in 2017 and was verbally counselled.[67] Mr Cleal admitted to making this threat.[68]  Mr Pritchard says that following that threat to another employee, he said to Mr Cleal

It's not an appropriate behaviour to start threatening, whether you meant it or not.  It's not an appropriate statement to do…if you do anything of this understanding, like you've suggested, to Allan or anyone else, I'll have to come and – come down on you like a ton of bricks.[69]

  1. [70]
    Mr Pritchard said that prior to the 20 July 2019 incident, he had encouraged Mr Cleal to respond to please explain letters against him to ensure that Workforce Services were 'going off all evidence available' and Mr Pritchard encouraged Mr Cleal to have a good break, put everything behind him and come back fresh and ready to go.[70]  The incident between Mr Cleal and Mr Chiu occurred shortly after Mr Cleal's leave.  Mr Pritchard had tried to support Mr Cleal by transferring his employment from cold larder to the Nutritional Assistant role upon his return from leave.[71]
  1. [71]
    The Respondent says that Mr Cleal's economic and personal circumstances do not outweigh the seriousness of his conduct and should not be used to justify his conduct.[72]
  1. [72]
    With regard to the submission that Mr Cleal's dismissal was harsh due to his length of service, the Respondent says that Mr Cleal's length of service was identified as a key issue in the brief considered by Mr Drummond[73] as a mitigating circumstance.[74] The Respondent says that Mr Cleal's length of service should not preclude it from dismissing Mr Cleal following his actions:

Occupational violence is insidious.  It is prevalent in the health system and we must take an extremely strong stand against occupational violence.[75]

  1. [73]
    The Respondent says that while Mr Cleal has acknowledged that he inappropriately pushed Mr Chiu, his excuses and justifications for doing so and claims that his actions were 'entirely reasonable and proportionate' support the Respondent's reasoning for dismissal that include Mr Cleal's lack of insight.[76]
  1. [74]
    The Respondent says that it conducted a full investigation and gave Mr Cleal every opportunity to respond to the allegations against him.  Mr Drummond then made an honest decision that Mr Cleal's conduct warranted dismissal. 
  1. [75]
    The Respondent says that the Commission should not disturb the decision and relies on the matter of Harris v Gold Coast City Council [2012] QIRC 5 instructively quoted with approval from chief Industrial Commissioner Hall in Nicholas Stark v P & O Resorts (Heron Island) and Jennifer Simpson v P & O Resorts (Heron Island) [1993] 144 QGIG 914 where he stated:

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, and 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 evidence before the Commission

  1. [76]
    At the outset I will note that both the Applicant and the Respondent have, at various times provided objections to evidence or made submissions regarding either the admissibility of evidence before the Commission or the weight to be given to it.  I have considered all of these submissions even if I do not address them in these written reasons.  I note that the Commission is not bound by rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction.[77] Vice President O'Connor relevantly states:

Whilst the rules of evidence do not apply in the Commission in the strictest sense, as the authorities suggest, it does not necessarily follow that they are irrelevant.[78]

  1. [77]
    The Commission heard from a number of witnesses:
  • Mr Perry Cleal;
  • Mr Shaun Drummond;
  • Ms Lauren Griffin;
  • Mr Peter O'Sullivan;
  • Ms Caitlin Mather;
  • Ms Dree Plank;
  • Ms Sandra Spurgin;
  • Mr Scott Pritchard; and
  • Mr Michael Moy.
  1. [78]
    It is unfortunate that Mr Chiu was unable to given evidence at the hearing due to illness.  The Commission was provided with a medical certificate with regard to Mr Chiu's unavailability.[79] In the absence of Mr Chiu's evidence or the capacity of the Applicant to cross-examine him, I have had to consider the only evidence available.  This is the 'risk man' report and the statement provided to police.  Both are contemporaneous accounts of Mr Chiu's version of events. I note the Applicant's submission regarding the weight that should be afforded this evidence given Mr Chiu was unavailable for cross-examination.  I also note the Respondent's submission that Mr Chiu's statement was signed in the presence of a police officer and acknowledged that if anything in his statement was false, he may be liable for prosecution. 
  1. [79]
    Ms Senior was to be called by the Respondent and became unavailable on the day due to a personal matter.  At the hearing, the Applicant agreed to Ms Senior's statement being entered into evidence without it being tested.[80] It was therefore surprising that submissions were made that her statement be given 'little to no weight' as it had been unable to be tested.  In any case, while Ms Senior's statement added some context to the incident, I do not find that her evidence was a compelling factor in my determination of this matter.
  1. [80]
    Ms Spurgeon's evidence makes reference to a conversation she had with Mr Chiu some time after the event where she says he described his advances toward Mr Cleal.  While this evidence is hearsay, I note the Applicant's submission that Mr Chiu's statement to Ms Spurgin should be regarded as a Res Gestae admission for the purposes of this case.  In any case, the conversation Ms Spurgin recalls having with Mr Chiu does not appear to cast new light on matters.  Rather, it provides further context regarding the picture that emerges when I consider what was most likely to have happened on the balance of probabilities. 
  1. [81]
    The Applicant says that all of the Respondent's witnesses were 'either a number of metres away, out of earshot of Mr Chiu, Mr O'Sullivan and Mr Cleal, not facing Mr Cleal or Mr Chiu or admit to having hearing difficulties'.[81]
  1. [82]
    Indeed, one of the difficulties in this matter is that none of the witnesses to the event appear to have observed the whole incident from the arrival in the room and initial approach from Mr Chiu to Mr Cleal through to the interaction between the men which ultimately led to the 'push' and Mr Chiu landing on the trolley. 
  1. [83]
    The CCTV footage offers no way of seeing what actually went on between Cleal and Chiu, and as is normal for CCTV, there is no audio of the event.  However, when taking into account the statements of witnesses, and the evidence given under cross-examination on the balance of probabilities, I am willing to accept that there was an interaction of both a verbal and a physical nature and that this interaction was initiated by Mr Chiu.

Consideration

Conduct subject of the disciplinary finding and disciplinary action of termination

  1. [84]
    It is uncontroversial that on 20 July 2019, there was an incident in the kitchen at PAH involving Mr Chiu and Mr Cleal.
  1. [85]
    The incident occurred on a weekend.  On the Monday following the incident, Mr Pritchard (manager) found that Paulo Dores (supervisor)[82] had written an email to him to report the event and Mr Cleal had recorded a recollection of the event by way of a 'RiskMan'.  Given the physical nature of the event, Mr Pritchard determined that it was a matter that should be escalated to Human Resources for action.
  1. [86]
    At some point after Mr Pritchard escalated the matter, Mr Chiu also completed a RiskMan recording his recollection of the incident.
  1. [87]
    I have reviewed Mr Cleal's and Mr Chiu's RiskMan reports,[83] Mr Cleal's evidence and the evidence or statements of several witnesses who either saw the event (or were present in the kitchen when it happened but did not see it or had a limited view) and/or its aftermath or were present in the kitchen when the events occurred.[84]  On the basis of this material, it is clear to me that there was an interaction between Mr Cleal and Mr Chiu involving Mr Chiu approaching Mr Cleal and either 'nudging' his shoulder or 'shouldering' or 'hip and shouldering' Mr Cleal. 
  1. [88]
    Following this, the evidence shows that on the balance of probabilities, it is likely that Mr Chiu touched Mr Cleal in the area of his upper chest or neck by way of touching his buttons or grabbing his shirt while making comments about Mr Cleal's buttons being undone.
  1. [89]
    Those interactions are not visible on the CCTV footage of the event that was shown to the Commission and witnessed multiple times.  However, various witness statements, and in fact, evidence of Chiu and Cleal themselves are strongly suggestive that something of this nature occurred.
  1. [90]
    The CCTV footage clearly demonstrates that Mr Cleal and Mr Chiu's arms were entangled and Mr Cleal is walking forward while Mr Chiu is stepping backwards as a result of the force of Mr Cleal's movement.  There is a moment when the two men have separated and Mr Chiu has stepped, or been pushed, back. Mr Cleal's hands then move to Mr Chiu's chest and Mr Cleal pushes Mr Chiu with some force.  Mr Chiu has then fallen back against a trolley and then onto the ground.

Mr Cleal was provoked to some extent

  1. [91]
    I accept that Mr Cleal was provoked to some extent.  The evidence demonstrates that Mr Chiu had approached Mr Cleal and most likely touched him at the level of his chest or neck where his top buttons were.
  1. [92]
    Mr Cleal's RiskMan statement says:

Summary  I was leaning against line waiting to check line,eric came up beside me and shouldered me,which I ignored and turned to face up the line he then put his hands to my neck and said  i hadn.t done my buttons up on my shirt  and proceeded to grab my shirt top , I turn around and pushed him away and

Details  told him not to put his hands on me unless he was invited to do so,he then told me to fuck off.there were a number of staff who seen what happened,i consider anyone who puts there hands on my neck as an assault on my person,i was minding my own business and had said nothing to eric what so ever preceeding these events,i was only helping to check the line to help a fellow worker out,i was only defending myself.[85]

  1. [93]
    Mr Chiu's RiskMan statement says:

Summary perry push me into trolleys from his aggressive behaviour

Details  I approach perry to say hello like always do did give a tine nocth on shoulder and ask how r u so wasn't response from perry then I just made a little joke told your button is undone then he came very agressevisse swing my hand away push away fall to trolley on my back causing pain and bruises and and superficial scrath on my left arm I was very surprise is response to me.perry did say don't touch me on time of the incidend I didn't touch him when I fall down and hurt myself I said f off I was feeling[86]

  1. [94]
    In an email to Mr Pritchard from Paulo Dores, Food Services Supervisor sent later on the day that the incident took place, Mr Dores says

My view was limited to all happening of the incident I did see a bit as Perry was starting line Eric approach him to say hello touching him on shoulder this all happens in matter of seconds minute as turn around to other staff to give directions where to go then turn around heard Perry saying don't touch me and pushing Eric to trolley standing there. There was staff staying around and say incident…[87]

  1. [95]
    Mr Cleal's affidavit of 30 November 2020 states that after Mr Chiu approached him and did a 'hip and shoulder' action on him, he leaned back on the trolley of lids facing Mr Cleal.  Mr Cleal says that he heard Mr Chiu and Mr O'Sullivan laughing and talking about how his button was undone.  Mr Cleal says that he is of the view that Mr Chiu was attempting to taunt him. Mr Cleal says that Mr Chiu grabbed him on the shoulder and that he turned to Mr Chiu and Mr Chiu 'reached for my collar and throat area, and continued with the banter about my button not being done up…'. Mr Cleal says that he put his hands up to stop Mr Chiu and that the two mens' hands became entangled in a struggle.  Mr Cleal says that 'after some pushing and shoving, I was able to push Mr Chiu backwards away from me, at which time Mr Chiu fell into a plastic meal trolley.'  Mr Cleal says that his actions were 'reactionary and out of necessity to stop the uninvited contact and approach from Mr Chiu' and that he 'had no intention of pushing Mr Chiu into the meal trolley'.[88]
  1. [96]
    Mr Cleal says in this statement that

upon watching the CCTV footage of the incident, it is apparent that Mr Chiu and Mr O'Sullivan discuss something before entering the room, and during the course of the events, Mr O'Sullivan is standing close by with a smile on his face, watching the events unfold.[89]

  1. [97]
    Mr Cleal's statement says that he reacted the way he did because Mr Chiu had approached him when he was in a 'very confined space and was in effect backed into a corner'.[90]  Mr Cleal also recalls in his statement that Mr Chiu has previously called him names and that he has taken the jokes in jest but that in many instances he feels the jokes have gone too far and in many 'he is being a smart arse'.[91]
  1. [98]
    Mr O'Sullivan's affidavit filed on 3 March 2021 says that he observed Mr Chiu move closer to Mr Cleal but that Mr Chiu did not make physical contact with Mr Cleal. He also recalls that Mr Chiu 'then bent over and reached around Perry's body and pointed towards the middle of Perry's collar area with his finger.  Eric pointed his finger in a friendly and joking manner and said words to the effect of 'Your button is undone.'  Eric's finger did not touch Perry and Eric did not touch or grab Perry around his neck or collar area.'[92]
  1. [99]
    Mr O'Sullivan says that Mr Cleal did not respond to Mr Chiu when he was speaking to him, but goes on to say

I recall that when Eric [Chiu] pointed his finger towards Perry's [Cleal] collar area and said words to the effect of 'Your button is undone', Perry did not say anything in response. I observed Perry try to grab Eric's finger with his hand. Perry missed Eric's finger. Almost immediately after missing Eric's finger, Perry then spun around and grabbed Eric with his hands near Eric's shirt collar and upper body. Perry pushed Eric with one forceful push. I observed Eric fall back into a trolley with the force from the push. The trolley leant back as it stopped Eric from falling to the ground.[93]

  1. [100]
    Ms Diane Senior is an employee who was present in the kitchen at the time of the incident.  Ms Senior's statement recalls that 'Eric greeted Perry'.  Ms Senior says she does not recall exactly what Mr Chiu said to Mr Cleal but I believe it was words to the effect of "Hello Perry", which Mr Cleal ignored.[94]
  1. [101]
    Ms Senior goes on to say

I observed Eric point his finger towards Perry's shirt and heard Eric say something to Perry.  I cannot recall exactly what Eric said to Perry but I believe it was words to the effect of 'Perry, do your shirt up' or 'Do your button up.'  I did not see Eric touch Perry.[95]

  1. [102]
    Ms Senior also recalls that after the 'push', Mr Cleal said words to the effect of 'I never fucking asked you to touch me.'[96]
  1. [103]
    Ms Sandra Spurgin is an employee who was present in the kitchen when the incident occurred. Her statement says that she was standing with her back to Mr Cleal. Ms Spurgin says that she recalled Mr Cleal loudly say, 'Did I say that you could put your hands on me?'.  She says that she screamed as it was loud enough to frighten her.[97]
  1. [104]
    Ms Spurgin also recalls having a conversation with Mr Chiu later where she says that he told her that he had touched Mr Cleal's shirt.[98]  She also says that she spoke about the incident with Mr O'Sullivan who she recalled said words to the effect of 'Eric didn't even touch him.'.[99]
  1. [105]
    Ms Mather is an employee who was present in the kitchen at the time of the incident. Ms Mather recalls Mr Chiu and Mr O'Sullivan laughing and hearing other staff talking.[100] Ms Mather says that she did not look over at Mr Cleal or Mr Chiu until she heard Mr Cleal yell words to the effect of 'I didn't give you permission to touch me'.[101]  Ms Mather also states that 'at some stage later on the shift or in the following days, someone asked Mr Chiu what had happened and Mr Chiu said words to the effect of 'I was just joking about his button'.[102]
  1. [106]
    There was a suggestion by Mr Cleal and his representatives that Mr O'Sullivan had been involved in the incident.  I note that Mr O'Sullivan was accompanying Mr Chiu as the two men entered the kitchen and that he was standing nearby as the events unfolded.  I accept that it is probable that he was speaking to Mr Chiu.
  1. [107]
    Mr Cleal at one stage gave evidence that it was only after reviewing the CCTV footage and reflecting on it that he had realised Mr O'Sullivan had been a part of the provocation and that this was the reason he did not mention him in previous statements or his show cause response. However, it is evident that Mr Cleal had viewed the CCTV footage prior to submitting his show cause response. A handwritten statement and sketched map of the kitchen signed and dated by Mr Cleal on 17 September 2019 makes reference to him having viewed the CCTV footage on 13 September 2019.
  1. [108]
    I note that Mr Cleal seemed to recall Mr O'Sullivan's words and actions in more detail while under cross-examination.  Mr Cleal gave evidence not previously contained in his affidavits or show cause responses or statements at the time of the event that Mr O'Sullivan was speaking but that Mr Cleal didn't recall what was being said.[103] Soon thereafter, Mr Cleal appeared to recall specific things being said by Mr O'Sullivan about Mr Cleal's buttons.[104] Mr O'Sullivan's evidence was that he was not involved in any conversation with Mr Cleal regarding his buttons or his shirt but that he was nearby when events were occurring.[105]   There is no way of knowing what actually occurred. 
  1. [109]
    Mr Cleal says that he did not make mention of Mr O'Sullivan in his show cause responses or his statement to the police because the focus was on Mr Chiu.  I note that there is no evidence that Mr Cleal had been told by anyone to limit his recollection of the events to the actions of Mr Chiu.
  1. [110]
    I also note that Mr Cleal had access to the advice of his Union in preparing his statements.  Mr Cleal claimed under cross-examination the reason he had not included Mr O'Sullivan in his response to show cause notices was that he did not know of his involvement until viewing the CCTV footage. The evidence before the Commission was that Mr Cleal had in fact seen the CCTV footage with his union representative prior to providing his show cause responses, this raises concerns about Mr Cleal's evidence regarding Mr O'Sullivan and leaves questions regarding the true extent of Mr O'Sullivan's involvement, if any. 
  1. [111]
    I am left wondering how it is that Mr O'Sullivan's behaviour could have contributed to or provoked Mr Cleal's actions in the kitchen when his own evidence is that he was unaware of Mr O'Sullivan's involvement until some time after the event when he watched the footage.  The Respondent submits that Mr Cleal's description of Mr O'Sullivan's involvement was 'invented more recently to make the alleged provocation sound significantly worse than it was'.[106]
  1. [112]
    The absence of any contemporaneous reference to Mr O'Sullivan as a participant in events leads me to think it is more likely on the balance of probabilities that while Mr O'Sullivan was present and watching the events, perhaps with some level of interest or amusement, he was not involved in the incident to the extent Mr Cleal describes in his statements and under cross-examination.
  1. [113]
    It seems to me that it was sometime after his dismissal and during the preparation of materials for this unfair dismissal application proceeding that Mr Cleal decided that Mr O'Sullivan was involved in the events and had acted has a provocateur. 
  1. [114]
    Mr Cleal's statements regarding the event at the time and during the show cause process did not make reference to Mr O'Sullivan.  The first reference to Mr O'Sullivan came in statements being prepared for this hearing.  Further to this, I have reviewed the CCTV footage many times and am now very familiar with it.  While it is clear that Mr O'Sullivan was present during the incident, I cannot conclude on the evidence before me that Mr O'Sullivan was involved in the incident to an extent that he could be described as a provocateur. 
  1. [115]
    In any case, there is no evidence before me to suggest that Mr Chiu and Mr O'Sullivan had concocted a plan to threaten or taunt Mr Cleal.  The evidence suggests that Mr Chiu was a joker and it seems to me that he misjudged his actions toward Mr Cleal and would not have expected his advance to result in the reaction he received.
  1. [116]
    Mr Pritchard's evidence before the Commission was that he had never had cause to speak to either Mr Chiu or Mr O'Sullivan about their behaviour in the workplace or toward Mr Cleal specifically.[107]
  1. [117]
    I note Mr Cleal has submitted that he is aware that a team leader had written in the team leader communication book that Mr Chiu behaved in an annoying manner, in particular, pestering and distracting colleagues from doing work.[108]  While I am unable to verify this as I do not have the entry from the 'book' and the team leader Mr Cleal refers to was not called as a witness, I would note that a number of the statements given by employees in this matter describe Mr Chiu as a 'joker'.[109]
  1. [118]
    I have no doubt that Mr Cleal was not in the mood for workplace jokes or the attention paid to him by Mr Chiu and I believe him when he says he attempted to ignore Mr Chiu and just keep his head down to focus on his job.   I further accept that Mr Chiu's continuing advances on Mr Cleal would have been an annoyance to Mr Cleal.
  1. [119]
    While the evidence is unclear as to whether or where Mr Chiu touched Mr Cleal around his neck, throat or chest when referring to his buttons, there is evidence that Mr Cleal was heard saying words which it would seem to me he would only say if  he were touched in some way.
  1. [120]
    In an exchange under cross-examination, Mr Cleal said that Mr Chiu had said nothing threatening to him and that it was the touching from Mr Chiu that he found threatening

[Mr Moy]  So, given that you're recollecting things that were said by Mr Chiu now, do you remember him saying,  when he was reaching for your collar, do you remember him saying, 'I'm going to strangle you, Perry?' –

[Mr Cleal] He never said that.

[Mr Moy] No. Do you remember him saying, "I'm going to choke you"?—

[Mr Cleal] He never said that.

[Mr Moy] No. Do you remember him saying something like, 'I've had enough of you, Perry"?—

[Mr Cleal] No, he never said that.

[Mr Moy] No. Did he say – he didn't say anything threatening to you at all, did he?---

[Mr Cleal] Yes, he did, about my buttons. And then he was touching around here.

[Mr Moy] He said something about buttons and that's threatening you, is it? ---

[Mr Cleal]  Yep, yep.

[Mr Moy] Right, okay. So you consider anyone saying anything to you about buttons to be threatening you?---

[Mr Cleal]  No, I consider someone putting their hands on me to be threatening.

[Mr Moy]  While they're saying something about buttons? ---

[Mr Cleal]  Yeah, but he's putting his hands on me at the same time.

[Mr Moy] Okay. Did he say anything to you which was threatening in any way?---

[Mr Cleal] Only about my buttons. That's all.

[Mr Moy] Was that threatening to you?---

[Mr Cleal] No, not the verbal part of it, no.[110]

  1. [121]
    As discussed below, the above exchange leads me to the conclusion that while it is clear that there were some words or actions initiated by Mr Chiu towards Mr Cleal, they were not of a nature that would place any provocation at a level of seriousness that would warrant the reaction of Mr Cleal.
  1. [122]
    With regard to the Applicant's submission that Mr Cleal would not be in this situation but for the provocation of Mr Chiu, I find this a difficult argument to accept.   Such an argument would excuse any number of violent acts in response to a broad range of workplace interactions which may have the potential to cause offence or annoyance.  This is particularly the case where it is clear that Mr Cleal continued to act after any 'provocation' had ended and in circumstances where he had other options to remove himself from any perceived 'threat'.
  1. [123]
    This prospect was put to Mr Drummond under cross-examination

[Mr Santelises] ….I put it to you that but (for) Mr O'Sullivan's and Mr Chiu's conduct, the event would not have occurred with Mr Cleal?

[Mr Drummond] No. I suppose – where I don't – where I struggle with that- so I don't agree with the statement. And where I struggle with that is that whatever is the nature of the purported provocation, it never excuses what the actual physical violence and the reaction for that was.  And that actually appears in Mr Cleal's statement to say I accept that the action was unacceptable action and that therefore, it – however, it should be excused because of the lead up to that.  And I actually considered that, but I don't believe that that actually was an appropriate interaction, even it is was provoked, if you were taking the extreme interpretation.  Now, where I'm getting to on this, to answer your particular question – no, I actually have to have confidence that as the chief executive where I've got the obligations around public safety, around the safety of the other employees, that we don't have an employee in any circumstance that would actually result with, effectively, that physical action and reaction and violence.  So – so if – so -so when you're saying that if that didn't particular - if that had not happened in that particular, would there – there would have been no incident.  Well, in fact, no, I don't have confidence that if there had been something slightly different or even a different conversation or interaction that might not have been the reaction.[111]

  1. [124]
    I do not accept the Respondent's submission that Mr Cleal was not provoked.  However, I also do not accept the AWU submission that Mr Cleal was seriously provoked or felt threatened to an extent that excused the force and aggression with which he responded to Mr Chiu.

Mr Cleal's reaction was not proportionate

  1. [125]
    Mr Cleal does not deny that he pushed Mr Chiu with some force.  The CCTV footage clearly bears this out, as do Mr Cleal's various descriptions of the incident.
  1. [126]
    I have reviewed the CCTV footage, stills and witness statements many times.  Mr Cleal and Mr Chiu are physically engaged with each other and Mr Cleal is walking forward while Mr Chiu is stepping back.  That action would have stopped any provocative behaviour from Mr Chiu and Mr Cleal would have been able to walk away or raise the alarm to his supervisor who was in the room.
  1. [127]
    Mr Cleal gave evidence that at the point that he extended his arms to push Mr Chiu backwards, the provocation had stopped.[112] However, what happened next is that Mr Cleal pushed Mr Chiu with some force and this caused Mr Chiu to fall back into the trolley.
  1. [128]
    Ms Dree Plank is an employee who was at work in the kitchen when the incident occurred.  Ms Plank's evidence is that she saw Mr Chiu arrive in the room but did not witness any interaction between he and Mr Cleal until she heard Mr Cleal shout and turned around towards the men. Ms Plank says

…Through the rack of lids, I saw Perry turn and push Eric quite forcefully and then pull his hands off of Eric. When Perry pulled his hands off of Eric, I could see Perry because (he) had come past the end of the rack of lids.  I saw Eric fall back into the trolley, which I believe was a silver trolley or another rack of lids. Eric did not fall to the ground but fell into the trolley quite forcefully, and he then stumbled a bit and stood back up…[113]

  1. [129]
    Ms Senior's statement says

I observed out of my peripheral vision Perry's body move in response. I did not clearly see Perry's response to Eric as he had his back to me. I saw Eric pull his hand away as Perry responded. Eric's gesture is what made me turn my body slightly and quickly to focus more on Perry and Eric.

I observed Perry grab Eric by the shirt near his upper chest area and push Eric backwards into the trolley. I saw all the trolleys push back with the force of Eric's weight with Eric landing in the centre of the trolley.[114] 

  1. [130]
    Ms Spurgin says that when she heard Mr Cleal say the words recounted above at [107], she turned around to face Mr Cleal and Mr Chiu and 'I saw Perry physically push Eric twice on the chest with enough force for Eric to fall back onto the trolley.'[115]
  1. [131]
    Ms Mather describes what she saw when she looked at Mr Cleal and Mr Chiu after hearing what was described at [105]

When I looked at them I saw Perry with his hands on Eric's upper body just below his shoulder level pushing Eric back aggressively, at least a metre, into the trolleys.[116]

  1. [132]
    At its highest, the evidence demonstrates that Mr Chiu was saying something annoying to Mr Cleal about the buttons on his shirt and probably touched the buttons or Mr Cleal's person in the vicinity of the buttons. The response of Mr Cleal in the circumstances is in my view not proportionate to the provocation.
  1. [133]
    While I accept that people worked in close quarters in the kitchen, I do not accept that Mr Cleal had no way out of the position he was standing in when Mr Chiu approached him.   In fact, the incident occurred several steps away from his workspace and the CCTV footage indicated to me that by the time Mr Cleal made the push on Mr Chiu, he could have made a choice to walk either to his left or his right to leave the situation.
  1. [134]
    Under cross-examination, Mr Cleal agreed that he had no reason to fear Mr Chiu and that Mr Chiu had not made an attempt to harm him in the workplace or outside of the workplace.[117]
  1. [135]
    There was some attempt by Mr Cleal to mitigate his actions by noting that he had previously complained of being bullied in the workplace.  However, a history of making reports about bullying (see [147] below) indicates to me that if Mr Cleal had been experiencing bullying by Mr Chiu, he knew that he was able to report this but did not.
  1. [136]
    I do not accept that Mr Cleal had no option in defending himself from Mr Chiu's unwanted advance but to push him into the trolley in a way that I would describe as aggressive.  This was not a situation where there was no one around and Mr Cleal did not have an option to raise his voice and call for attention or support if he felt genuinely threatened by Mr Chiu.   Mr Cleal's supervisor was nearby, as were several colleagues.

Mr Cleal had reason to know what the expectations of employees were at MSHHS

  1. [137]
    Ms Griffin gave evidence to the Commission regarding Mr Cleal's training record.[118] Relevantly, Mr Cleal had undertaken the following training:
  • Bullying, Harassment and Discrimination training (most recently completed on 15 January 2018);[119]
  • Code of Conduct training (most recently completed on 13 June 2019);[120]
  • Organisational Work Health and Safety training (most recently completed on 10 August 2018);[121]
  • Occupational Violence Awareness training (most recently completed on 24 March 2018);[122]
  • MAYBO Training[123] series regarding work related violence and aggression, (completed between January and March 2018).[124]
  1. [138]
    I have reviewed the material provided to me regarding the content of these modules. It is clear that the training addresses the expectations of employees and that it is clear to employees that disciplinary action may follow workplace behaviour not reflective of expectations.
  1. [139]
    I note in particular that the Occupational Violence Awareness training communicated the message that the Respondent has a zero tolerance approach to violence in the workplace.  Further to that, the training communicated that 'if any employee believes that their personal safety is at imminent risk from violence or aggression then they have the right to withdraw from an area.  The training also stated that 'employees have the right to defend themselves or others using reasonable force if assaulted' and that 'violence and aggression is not acceptable and will not be tolerated'.[125]
  1. [140]
    There is no suggestion from the Respondent that it was not open to Mr Cleal to withdraw from the area.  Further, I have the impression that had Mr Cleal used 'reasonable force' in the circumstances, the matter would not have escalated to a disciplinary process resulting in termination.  
  1. [141]
    I further note that Mr Cleal received non-disciplinary warnings regarding behaviour towards colleagues on 8 May 2019 and 10 June 2019.[126]  The letter dated 8 May 2019, states

I therefore take this opportunity to warn you about any future breaches of the code of conduct and to remind you of your obligations to demonstrate a high standard of workplace behaviour and conduct. Accordingly, you are warned about treating your work colleagues with respect.  As a result of this warning you are required to undertake the Code of Conduct for the Queensland Public Service MSH training and inform Mr Scott Pritchard, Food Services Manager on completion.

…

You should note that this warning is not considered as disciplinary action against you.

However, if you fail to treat your colleagues with respect in the future I will take this warning into consideration in determining an appropriate course of action.

  1. [142]
    The letter dated 10 June 2019, stated

I therefore take this opportunity to warn you that your language and behaviour to your colleagues must be respectful, professional and courteous.

Your behaviour will be monitored, and you are reminded to abide by the code of conduct and take seriously your obligations to demonstrate a high standard of workplace behaviour and personal conduct.  Accordingly, you are warend about treating your work colleagues with respect.  As a result of this warning you are required to undertake the following Metro South Health training programs:

  • Effective Workplace Communication for all Employees
  • Emotional Intelligence

…

You should note this warning is not considered as disciplinary action against you.  However, if you fail to treat your colleagues with respect in the future I will take this warning into consideration in determining an appropriate course of action.

  1. [143]
    These two non-disciplinary warnings and the training required of Mr Cleal as a result of each warning make it clear Mr Cleal was aware of the expectations of his employer with regard to interactions with colleagues and the code of conduct.
  1. [144]
    Further evidence that Mr Cleal knew of the employer's expectations appears in the evidence of Mr Scott Pritchard.  Mr Pritchard is the manager of Retail and Patient Food Services and gave evidence of occasions where he had dealt with complaints against Mr Cleal in the past.  Mr Pritchard recalled an occasion where he investigated a complaint made against Mr Cleal and was unable to find evidence that Mr Cleal had acted inappropriately toward the employee involved.[127]  However, Mr Pritchard also recalled an occasion where he needed to speak with Mr Cleal about a statement he made to another employee threatening to 'knock' the employee's 'block off'. The outcome of that incident was that Mr Cleal apologised and acknowledged that he was aware of the Code of Conduct and would refrain from making any threats in the future.  The other employee apologised to Mr Cleal for making a derogatory comment about the New South Wales State of Origin team in circumstances where Mr Cleal had a relative who had once played for New South Wales.  Mr Pritchard made a file note about the incident and the meeting.[128]
  1. [145]
    Mr Pritchard's statement also addressed the matters subject of the non-disciplinary warnings referred to above at [141] and [142].[129]
  1. [146]
    Mr Cleal says that he was unaware of some of the warnings and had only seen them as a result of the disclosure process in these proceedings.[130]  He further says that he does not accept that he acted inappropriately in either of the instances given the context of the behaviour of the other parties involved.[131]  I do not accept Mr Cleal's evidence that he was unaware of the warnings and note that he is aware of both instances subject of the warnings.
  1. [147]
    Mr Cleal also says that he had previously raised concerns with Mr Pritchard that he was being subjected to workplace harassment and bullying and also being frozen out of all communication within the workplace.[132]
  1. [148]
    I note that under cross-examination, Mr Pritchard discussed the culture within the workplace in the kitchen and other complaints that had arisen with regard to the way employees speak to each other, their willingness to undertake certain tasks and not wanting to work as a team.[133]  While the workplace culture is important to take into account when considering all of the facts surrounding the incident, I do not accept that the evidence regarding the culture of the workplace serves to excuse Mr Cleal's conduct.

The case law regarding fighting in the workplace

  1. [149]
    Cases relating to fighting in the workplace were brought to my attention. In the matter of Harris v Queensland Nickel Pty Ltd (2001) 169 QGIG 2, reinstatement was ordered where the dismissed employee was not the provocateur in the fight; the other person involved in the fight had 'form' which was not taken into account; Mr Harris's employment record was unblemished and he was not the aggressor in the incident.
  1. [150]
    In the matter of AWU-FIME Amalgamated Union v Queensland Alumina Limited[134] the applicant had their lunch squashed by a co-worker and was invited to hit another. Both the applicant and the other participant in the fight were involved in hitting each other.
  1. [151]
    The matter of Milton, following and argument about a light switch, the Applicant had a glass bowl thrown in their direction which resulted in an altercation. No punches were thrown and while the Member concluded the response to the bowl being thrown was inappropriate, it was determined that few would react to such a provocation in a calm or passive manner.
  1. [152]
    The Respondent says that previous cases involving physical actions which led to findings that terminations were harsh, unjust and unreasonable do not create a precedent that all cases involving violence should result in similar findings.  The Respondent says that the cases relied upon by the Applicant are many years old, and do not relate to a public hospital environment and employees who interact with patients in a public hospital environment.
  1. [153]
    The cases which deal with fighting may be of some use to the extent that they deal with the matter occupational violence, however, in the present case, I am not convinced that the actions of the parties can be called a 'fight'.  There is no evidence before me that Mr Chiu retaliated when Mr Cleal moved forward to push him. The footage shows Mr Chiu retreating (albeit as being pushed by Mr Cleal) and Mr Cleal making his final push against Mr Chiu when they were clear of the more confined workspace and when the Mr Chiu was clearly no longer in a position to make further advances on Mr Cleal.
  1. [154]
    The Respondent says that the matter of Milton does not assist Mr Cleal as in that matter, the provocation included the dismissed employee suddenly finding himself being 'showered with bits of food and glass from the impact of the dinner bowl thrown by Nikolau with considerable force against the door'.  The Respondent says that the contrast of the provocation is stark and refer to where the Commissioner decided:

there is no question that the applicant's reaction was inappropriate.  It was wrong. It cannot be condoned. He was however subject to serious provocation that in my view would evoke an angry response of one form or another from the most ordinary, reasonable employees.

  1. [155]
    The Respondent says that the best recent example of the Respondent's response to an employee being involved in a physical altercation is the case of Sarvestani v State of Queensland (Metro South Hospital and Health Service) [2017] QIRC 85.  The Respondent says that in paragraph [193] of that decision, Commissioner Thompson, in upholding the dismissal of the employee, reiterated the importance of the incident being an assault in a public hospital and relied on the Industrial Court decision of President Williams in Queensland Health v Gary Robinson and Brian Grimley [1999] QIC 14 (25 February 1999) which stated:

There is no doubt that the incident was unacceptable conduct in the workplace, and totally unacceptable conduct in a public hospital. As between the two combatants, questions such as provocation and self defence are relevant but such considerations could not in my view so mitigate the conduct of either as to lead to a conclusion that dismissal was not called for.

  1. [156]
    I have given consideration to the cases put before me and submissions from the Applicant surrounding occasions where employees involved in physical altercations have not been dismissed. However, I accept the Respondent's submission that previous decisions not to dismiss an employee in other circumstances should not mean that the Respondent is unable to make a decision to dismiss an employee following a show cause process.
  1. [157]
    For the reasons given above, I have found that even if Mr Cleal had been provoked, the provocation and any perceived threat were not of a nature that excused Mr Cleal's reaction and the pushing of Mr Chiu into the trolley.  The circumstances and arguments advanced by Mr Cleal do not mitigate his conduct to the extent that it makes his dismissal unfair.

The decision maker considered the incident in its totality and acted in accordance with the Discipline guideline.

  1. [158]
    The Applicant says that the decision maker, Mr Drummond, did not view the CCTV footage prior to deciding to terminate Mr Cleal from his employment and therefore did not take into account the events leading up to the push and any provocation of Mr Cleal prior to deciding to commence the disciplinary process.  The argument appears to be that had Mr Drummond viewed the CCTV footage, he may have determined that the push was a proportionate response.
  1. [159]
    A review of the evidence makes it clear why the incident was taken very seriously. The CCTV footage was viewed by those making the initial recommendation that Mr Cleal be suspended from the workplace pending a decision to be taken on how to progress the matter and on several other occasions throughout the disciplinary show cause process.
  1. [160]
    While the discipline guideline E10 enables a decision maker to determine that an incident that could have been dealt with by management action at the immediate workplace level, I find that it was entirely reasonable for the manager to decide to escalate this matter given the serious nature of the interaction between the two men.
  1. [161]
    Mr Pritchard's statement says that on the Monday following the incident, he was contacted by 'Noel and Julie' from Workforce Services who informed him that they had reviewed the CCTV footage and that Mr Cleal would be stood down until further investigation'.[135]
  1. [162]
    Following the decision to commence a disciplinary process, it is clear that the termination followed a two stage show cause process involving Mr Cleal providing a response to the allegation and the proposed disciplinary action.  There is no material before me to suggest that Mr Cleal was not afforded the proper disciplinary process required.
  1. [163]
    I have read the second show cause notice where the delegate, Dr Michael Cleary, said 'I have reviewed the CCTV footage several more times and re-read the witness statements'.  In the letter, which establishes that the allegation has been substantiated, Dr Cleary compares the events in the CCTV footage with Mr Cleal's statement to police which he had requested be taken as his statement in the disciplinary process.
  1. [164]
    The termination letter provided to Mr Cleal by Mr Drummond stated that Mr Drummond had taken into account Mr Cleal's submissions that Mr Chiu had placed hands on his shoulders, that Mr Cleal felt the need to defend himself and that he considered that Mr Chiu's actions constituted harassment.  Mr Drummond also states that 'In coming to a decision, I have considered the witness statements and have viewed the video footage a number of times, and in my view the footage shows you aggressively pushing Mr Chiu with force…'.[136]
  1. [165]
    Under cross-examination, Mr Drummond agreed that he had not viewed the video footage itself but a series of stills from the footage.  Mr Drummond also agreed that the stills represented the 'push' and did not show the lead up to the push including Mr Chiu and Mr O'Sullivan entering the kitchen.
  1. [166]
    Mr Drummond was asked whether the CCTV footage would have been helpful in his consideration.  Mr Drummond was clear in his response that he considered the statements regarding physical harm to Mr Chiu, Mr Cleal's admission that he pushed Mr Chiu and the stills which he said were very clear.  Mr Drummond said that where the start of the incident had occurred was not shown on the footage.
  1. [167]
    The evidence does not bear out that Mr Drummond did not take into account any of events leading up to the push.  Mr Drummond had the Riskman statements of Mr Cleal and Mr Chiu and the show cause responses of both men along with other witness statements.
  1. [168]
    Specifically, Mr Drummond acknowledged Mr Cleal's statement that he had been acting in self-defence, Mr Drummond said:

…the evidence at hand plainly does not support your position.  I do not accept this as a factor in mitigation. I do not find that there are any circumstances which may mitigate the gravity of your conduct, and struggle to reconcile the justifications you have provided for it.

I share Dr Cleary's alarm that your response by and large apportions the blame for your actions on Mr Chiu. I am not satisfied that you have accepted any accountability or acknowledge your personal culpability for your own conduct.  I find it further concerning that you have shown no contrition or willingness to render an apology to Mr Chiu.

  1. [169]
    While the termination letter includes a finding by Mr Drummond that Mr Cleal's conduct 'has escalated to unprovoked violence',[137] in his evidence before the Commission, Mr Drummond says that he found that even if there was some provocation, Mr Cleal's behaviour was unacceptable.  Mr Drummond's evidence was that he 'could not in all honesty guarantee that such violence would not be perpetrated by Mr Cleal again' and that Mr Cleal's responses 'demonstrated very little insight into the seriousness of his conduct or alternative ways that he could have dealt with the situation with Mr Chiu, even if events transpired as Mr Cleal claims.'[138]
  1. [170]
    Mr Drummond's statement for this matter also said,

Even if I had accepted that Mr Chiu had invaded Mr Cleal's personal space and touched Mr Cleal, the appropriate response, and my expectation of a MSHHS employee in those circumstances, would be to walk away and escalate the matter to a manager or team leader. Responding with physical violence and the degree of aggressive violence which Mr Clean enacted on Mr Chiu should never be tolerated in a workplace, let alone a hospital, and demonstrated to me that it was not appropriate that Mr Cleal continue his employment with MSHHS.[139]

  1. [171]
    Mr Drummond's evidence was that not all matters come to the Chief Executive but that to the best of his knowledge Mr Chiu and Mr O'Sullivan had not been investigated or disciplined regarding the incident.
  1. [172]
    I note the applicant's submission that Mr O'Sullivan and Mr Chiu have not been disciplined in relation to this matter.  For reasons given above, I am unable to conclude that Mr O'Sullivan was involved in this incident to an extent that would warrant the commencement of a disciplinary process.  As I understand it, not long after the incident, Mr Chiu commenced a period of leave arising from a WorkCover claim (which I understand was not related to this matter).  In the circumstances I am unable to find that a lack of disciplinary action being taken against either Mr O'Sullivan or Mr Chiu makes Mr Cleal's dismissal unfair.
  1. [173]
    There is no evidence before me to suggest that it was unreasonable for the Respondent to commence the disciplinary process or that all of the circumstances of the matter were not taken into account in coming to the decision to terminate Mr Cleal's employment.

The behaviour was a valid reason for dismissal

  1. [174]
    The Respondent has highlighted that it takes a zero tolerance approach to occupational violence and has said that it owes a duty to employees to provide a safe workplace.
  1. [175]
    While I note that the evidence is that Mr Cleal was working in a tight space,[140] I cannot accept that the action he took was the only action available to him.  I also note the submissions made regarding the high volume of meals[141] to be produced in the kitchen and the 'pressures' Mr Cleal faced on the day of the incident.  However, the kitchen appears to produce such meals on a regular basis and Mr Cleal is an experienced employee. I cannot accept the high volume of meals produced in the kitchen or Mr Cleal's workload on that day were of an exceptional nature that may serve to excuse his actions.
  1. [176]
    The environment Mr Cleal was working in was a kitchen where people were working in close proximity to each other and there was a range of equipment in the vicinity.  Mr Cleal's actions were not safe and I accept Mr Drummond's evidence that the employer determined it could not ensure that Mr Cleal would not behave the same way again.
  1. [177]
    Mr Pritchard's evidence was also that he 'could not have any confidence that something similar to what happened with Eric and Perry would not happen again.'[142]
  1. [178]
    Mr Cleal's statement to the QPS describes his reaction to what he says was Mr Chiu grabbing him around the throat as instinctive and part of martial arts training he has been doing for 23 years. Mr Cleal stated

Someone comes up behind me and then puts their hands – starts to put their hands around my neck; it's just automatic for me.[143]

  1. [179]
    Under cross-examination, Mr Cleal was asked what would happen if a similar thing happened again

[Mr Moy] So I put it to you Mr Cleal, that if a similar incident happened again and someone said something about buttons and put their hands up near your collar, that exactly the same thing would happen against because it's just – it's automatic for you, that's instinctive for you, isn't it?---

[Mr Cleal] I – yeah, I said in that same thing I just swung around with my hands up and then I pushed him back just to get him off me, to get him away from me.

[Mr Moy] Sorry, my question: you'd do the same thing, wouldn't you?---

[Mr Cleal] As a defensive act ---

[Mr Moy] Because it's just instinctive for you?---

[Mr Cleal]  As a self-defence.

[Mr Moy] You have no control over that, do you?—

[Mr Cleal] Yes, I did, as self-defence.

[Mr Moy] But sorry, you say it's instinctive for you?---

[Mr Cleal] But I have to feel like I'm threatened.

[Mr Moy] You were threatened because someone said something about buttons ---?---

[Mr Cleal] No, I felt threatened---

[Mr Moy] ---and their hands went to your throat?---

[Mr Cleal] I felt threatened because his hands were around my throat, mate.

[Mr Moy]  Yes. So the same thing would happen again, because that's ---?

[Mr Cleal] ---If someone put their hands around my throat, I would seek to defend myself, yes.

[Mr Moy] That's what---?

[Mr Cleal] ---That’s what I train and teach martial arts for, mate, self-defence. Self-defence. Self-defence.

  1. [180]
    This response is concerning when taken along with Mr Cleal's acknowledgement that his conduct had not been appropriate.[144] Mr Cleal's evidence at the hearing demonstrated a lack of self-reflection following the events that took place, regarding other ways that Mr Cleal might choose to react in such a situation given that it is clear that the employer found his conduct unacceptable. 

The dismissal was not harsh, unjust or unreasonable

  1. [181]
    The employer investigated the matter and determined that Mr Cleal's actions were not justified in the circumstances.  The evidence demonstrates that Mr Cleal had good reason to know the expectations of his employer and that physical violence would not be tolerated in the workplace. 
  1. [182]
    The Applicant submits that Mr Cleal's length of service and personal circumstances make the dismissal harsh.  I understand that Mr Cleal has worked for the Respondent for a long time and that he has a reasonably limited skill set.  I also note his age.  I believe that these things were taken into account by the decision maker and I have also given consideration to them.
  1. [183]
    Mr Cleal's length of service was one of the key issues set out in the brief to Mr Drummond recommending termination.[145]
  1. [184]
    Mr Drummond's evidence was that he took Mr Cleal's length of service into consideration.  When it was put to him that Mr Cleal's length of service 'not have led to termination of his employment…', Mr Drummond's response was emphatic, '…I don't agree.  Occupational violence is insidious. It is prevalent in the health system and we must take an extremely strong stand against occupational violence.'[146]
  1. [185]
    The impact on Mr Cleal is outlined in submissions and I understand that Mr Cleal has had to rely on his savings and also change his living arrangements as a result of being dismissed.
  1. [186]
    However, when taken with the reasons given above, I do not find that the length of service and any hardship experienced by Mr Cleal as a result of his dismissal serves to outweigh the seriousness of his conduct and the employer's position with regard to occupational violence. 
  1. [187]
    The Respondent is seeking to create a healthy and safe workplace for employees by implementing a 'zero tolerance' approach to occupational violence.  This policy has been communicated to employees. It is clear that the Respondent has considered whether there are any mitigating circumstances that might excuse the violent or aggressive response of Mr Cleal to some form of annoyance or provocation. It was found that Mr Cleal's actions were not justified or reasonable and that no such mitigating circumstances exist. For the foregoing reasons, I agree.  In such circumstances, I cannot find that the termination was harsh, unjust or unreasonable.

Footnotes

[1] Industrial Relations Act 2016 s 320(a).

[2]  Ibid, s 320(b)(ii).

[3]  Ibid, s 320(c)(ii).

[4] Laegal v Scenic Rim Regional Council [2018] QIRC 136.

[5] Gold Coast District Health Service v Walker (2001) 168 QGIG 258, [259] (Hall P).

[6]  Applicant's outline of argument filed 12 February 2021, [25].

[7]  (1995) IR 371.

[8]  Ibid, 373.

[9] Back v Castran Gilbert Real Estate Pty Ltd 14 March AIRC, Guidice P, Williams SDP, Holmes C, Print S4014.

[10]  Affidavit of Lauren Griffin affirmed 11 March 2021, Exhibit LG-3.

[11]  (1995) 62 IR 385; cited in Tenix Defence Systems Pty Ltd v Fearnley, Print S6238.

[12]  Ibid.

[13] Milton v TransAdelaide [2003] SAIRC 15; Gwatking v Schweppes Australia Pty Ltd [2015] FWC 3969.

[14]  [2000] SAIR Comm 8, [57] per Hampton DP.

[15] Milton, 139.

[16]  Affidavit of Perry Cleal sworn 29 June 2021, [18].

[17]  Applicant's outline of argument filed 12 February 2021, [49].

[18]  Applicant's outline of argument filed 12 February 2021, [50].

[19]  T2-14, ll 36-39.

[20]  Applicant's written closing submissions filed 24 August 2021, [71].

[21]  T2-11, l 27.

[22]  Applicant's written closing submissions filed 24 August 2021, [79]-[82].

[23] Gwatking, [74].

[24] Gwatking, [101].

[25]  Affidavit of Mr Perry Cleal sworn 30 November 2020, [57]-[63].

[26]  In a previous decision, I determined that the notes of the Magistrates Court decision would not be admitted in this proceeding. For completeness, the outcome of the proceeding in the Magistrates Court was the Mr Cleal was found not guilty of assault and the charge was dismissed. 

[27] Gwatking, [62].

[28]  Affidavit of Perry Cleal sworn 30 November 2020, [28].

[29]  T1-49, l 31 - T1-50, l 4.

[30]  T1-49, l 42.

[31]  Affidavit of Perry Cleal sworn 30 November 2020, PC-03.

[32]  Exhibit 4, [126].

[33]  Exhibit 4, [374], [376].

[34]  Respondent's outline of argument filed 5 March 2021, [17].

[35]  T1-47, ll 1-10.

[36]  T1-46, l 36 - T1-47, l 9; T1-48, ll 3-11.

[37]  T2-24, ll 9-10.

[38]  T2-24, ll 26-30.

[39]  Affidavit of Shaun Drummond affirmed 22 December 2020, SD-3; T2-39, ll 13-17.

[40]  Affidavit of Shaun Drummond affirmed 22 December 2020, SD-2, pp 54-63.

[41]  Affidavit of Shaun Drummond affirmed 22 December 2020, SD-2, p 61.

[42]  T1-24, ll 4-10.

[43]  T1-28, ll 18-23.

[44]  T1-29, ll 15-17.

[45]  Affidavit of Perry Cleal sworn 30 November 2020, PC-03.

[46]  Affidavit of Perry Cleal sworn 30 November 2020, PC-03; PC-05.

[47]  Respondent written closing submissions filed 17 September 2021, [34].

[48]  T3-34, ll 25-47.

[49]  T2-24, ll 9-10; T2-24, ll 26-30.

[50]  T2-53, ll 15-30; T2-64, l 34; T2-66, l 6;

[51]  T3-34, l 41; T3-37, l 12.

[52]  Affidavit of Caitlin Mather affirmed 22 December 2020.

[53]  Affidavit of Peter O'Sullivan affidavit affirmed 2 March 2021, [5]-[6].

[54]  T2-45, ll 29-30; T2-46, ll 14-20; T2-47, ll 26-45; T2-48, ll 1-43; T2-57, ll 6-7.

[55]  T1-42, ll 17-20.

[56]  Respondent's written closing submissions filed 17 September 2021, [36].

[57]  T2-15, ll 30-44.

[58]  T1-58, ll 10-34.

[59]  T1-50, ll 20-45; T1-52, ll 35-42; Exhibit 4, [427], [429].

[60]  T3-12, l 8.

[61]  T3-14, ll 9-10.

[62]  Respondent written closing submissions filed 17 September 2021, [69].

[63]  Respondent written closing submissions filed 17 September 2021, [102].

[64]  Respondent written closing submissions filed 17 September 2021, [102]. 

[65]  Affidavit of Shaun Drummond affirmed 22 December 2020, [13], [33]-[34].

[66]  Affidavit of Scott Pritchard sworn 22 December 2020, [45].

[67]  Affidavit of Scott Pritchard sworn 22 December 2020, [10]-[22].

[68]  Affidavit of Perry Cleal sworn 13 January 2021, [52]-[53].

[69]  T3-46, ll 25-35.

[70]  T3-30, ll 6-30.

[71]  T3-32, l 37 - T3-33, l 21.

[72]  Respondent's outline of argument filed 5 March 2021, [25]; Respondent's written closing submissions filed 17 September 2021, [127].

[73]  Affidavit of Shaun Drummond affirmed 22 December 2020, SD-3; T2-36, ll 44 – T2-37, l 2; T2-39, ll 5-22.

[74]  T2-25, l 45 - T2-26, l 7.

[75]  T2-26, ll 6-7.

[76]  Respondent's outline of argument filed 5 March 2021, [31].

[77]  IR Act, s 531(2)(a)-(b).

[78] King v Workers' Compensation Regulator [2019] QIRC 134, [18].

[79]  Affidavit of Michael Moy affirmed on 14 January 2021, MM-2.

[80]  T2-88, ll 20-42.

[81]  Applicant's outline of argument filed 12 February 2021, [38].

[82]  The Commission heard that Mr Dores has not provided evidence for this matter.  I have only had reference to the email and report of Mr Dores. These documents were produced contemporaneous to the event and I find the content of them to be uncontroversial and to generally reflect the evidence before the Commission with regard to the incident.

[83]  Affidavit of Perry Cleal 6 April 2021 PC-01; PC-01.

[84]  For example: EB-1 is an email Mr Dores wrote to Mr Pritchard about the incident;  EB-2 is a Statement provided by Mr Dores on 9 August 2019.

[85]  Affidavit of Perry Cleal sworn 29 June 2021, PC-01 - I note that the statement was entered into an online form and it is possible that I do not have the full text entered into this field in the print out that is in evidence.

[86]  Affidavit of Perry Cleal sworn 29 June 2021, PC-0.

[87]  Affidavit of Scott Pritchard sworn 22 December 2021, SP-10.

[88]  Affidavit of Perry Cleal sworn 30 November 2020, [21]-[30].

[89]  Affidavit of Perry Cleal sworn 30 November 2020, [31].

[90]  Affidavit of Perry Cleal sworn 30 November 2020, [39].

[91]  Affidavit of Perry Cleal sworn 30 November 2020, [41].

[92]  Affidavit of Peter O'Sullivan affirmed 2 March 2020, [14].

[93]  Affidavit of Peter O'Sullivan affirmed 2 March 2020, [17].

[94]  Affidavit of Diane Senior sworn 21 December 2020, [13].

[95]  Affidavit of Diane Senior sworn 21 December 2020, [14].

[96]  Affidavit of Diane Senior sworn 21 December 2020, [19]

[97]  Affidavit of Sandra Spurgin affirmed 21 December 2020, [7], [9].

[98]  Affidavit of Sandra Spurgin affirmed 21 December 2020, [14].

[99]  Affidavit of Sandra Spurgin affirmed 21 December 2020, [15].

[100]  Affidavit of Caitlin Mather affirmed 22 December 2020, [10].

[101]  Affidavit of Caitlin Mather affirmed 22 December 2020, [11].

[102]  Affidavit of Caitlin Mather affirmed 22 December 2020, [25].

[103]  T1-24, ll 4-10.

[104]  T1-28 ll 18-23.

[105]  Affidavit of Peter O'Sullivan affirmed 2 March 2020, [20]-[22].

[106]  Respondent's written closing submissions filed 17 September 2021, [36].

[107]  Affidavit of Scott Pritchard sworn 22 December 2021, [63]-[64].

[108]  Affidavit of Perry Cleal sworn 29 June 2021, [16].

[109]  T2-43, ll 5-9; T2-72, ll 12-14; T2-81, ll l29.

[110]  T1-58, ll 10-34.

[111] T2-14, l 30 – T2-15, l 3.

[112] T1-46, l 39 – T1-47, l 9; T1-48, ll 1-11.

[113]  Affidavit of Dree Plank sworn 22 December 2020, [13].

[114]  Affidavit of Dree Plank sworn 22 December 2020, [16].

[115]  Affidavit of Sandra Spurgin affirmed 21 December 2020, [10].

[116]  Affidavit of Caitlin Mather affirmed 22 December 2020, [32].

[117]  T1-50, ll 26-43.

[118]  Affidavit of Lauren Griffin affirmed 11 March 2021, [24]-[28]; LG-4.

[119]  Affidavit of Lauren Griffin affirmed 11 March 2021, LG-5.

[120]  Affidavit of Lauren Griffin affirmed 11 March 2021, LG-6.

[121]  Affidavit of Lauren Griffin affirmed 11 March 2021, LG-7.

[122]  Affidavit of Lauren Griffin affirmed 11 March 2021, LG-8.

[123]  MAYBO is an external provided who administered training.  The training is by way of online modules.  Records reflect that Mr Cleal completed the following modules: Risks, Rights and Responsibilities; Understanding Human Behaviour; Positive interactions and choices; Dynamic Risk assessment; Safer de-escalation.  This training is now done internally using a program developed by MAYBO.

[124]  Affidavit of Lauren Griffin affirmed 11 March 2021, LG-9.

[125]  Affidavit of Lauren Griffin affirmed 11 March 2020, LG-8.

[126]  Affidavit of Shaun Drummond affirmed 22 December 2020, SD-3.

[127]  Affidavit of Scott Pritchard sworn 22 December 2022, [8]-[9].

[128]  Affidavit of Scott Pritchard sworn 22 December 2022, [10]-[22].

[129]  Affidavit of Scott Pritchard sworn 22 December 2022, [23],[45].

[130]  Affidavit of Perry Cleal sworn 30 November 2020, [53].

[131]  Affidavit of Perry Cleal sworn 30 November 2020, [54].

[132]  Affidavit of Perry Cleal sworn 30 November 2020, [56].

[133]  T3-12, ll 26-46.

[134]  (1995) 62 IR 385; cited in Tenix Defence Systems Pty Ltd v Fearnley, Print S6238, [22].

[135] Affidavit of Scott Pritchard sworn 22 December 2020, [51]-[52].

[136] Affidavit of Shaun Drummond affirmed 22 December 2020.

[137]  Affidavit of Shaun Drummond affirmed 22 December 2020, SD-5.

[138]  Affidavit of Shaun Drummond affirmed 22 December 2020, [33].

[139]  Affidavit of Shaun Drummond affirmed 22 December 2020. [34].

[140] T2-24, ll 38-41; T2-83-84.

[141] T3-18, ll 24-27.

[142] Exhibit 15. [66].

[143] Exhibit 4.

[144] Applicant's outline of argument filed 12 February 2021, [49].

[145] Affidavit of Sean Drummond affirmed 22 December 2020, SD-3.

[146] T2-25, l 43 – T2-26, l 7.

Close

Editorial Notes

  • Published Case Name:

    The Australian Workers' Union of Employees, Queensland v State of Queensland (Queensland Health)

  • Shortened Case Name:

    The Australian Workers' Union of Employees, Queensland v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 36

  • Court:

    QIRC

  • Judge(s):

    Member Pidgeon IC

  • Date:

    11 Feb 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
AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385
3 citations
Jump To
Cite 1 - (1995) 62 IR 385
Cite 2 - (1995) 62 IR 385
Cite 3 - (1995) 62 IR 385
Gold Coast Health District v Walker (2001) 168 QGIG 258
2 citations
Jump To
Cite 1 - (2001) 168 QGIG 258
Cite 2 - (2001) 168 QGIG 258
Gwatking v Schweppes Australia Pty Ltd [2015] FWC 3969
6 citations
Jump To
Cite 1 - [2015] FWC 3969
Cite 2 - [2015] FWC 3969
Cite 3 - [2015] FWC 3969
Cite 4 - [2015] FWC 3969
Cite 5 - [2015] FWC 3969
Cite 6 - [2015] FWC 3969
Gwatking v Schweppes Australia Pty Ltd [2000] SAIR Comm 8
1 citation
Jump To
Cite 1 - [2000] SAIR Comm 8
Harris v Gold Coast City Council [2012] QIRC 5
2 citations
Jump To
Cite 1 - [2012] QIRC 5
Cite 2 - [2012] QIRC 5
Harris v Queensland Nickel Pty Ltd (2001) 169 QGIG 2
2 citations
Jump To
Cite 1 - (2001) 169 QGIG 2
Cite 2 - (2001) 169 QGIG 2
King v Workers' Compensation Regulator [2019] QIRC 134
1 citation
Jump To
Cite 1 - [2019] QIRC 134
Laegal v Scenic Rim Regional Council [2018] QIRC 136
2 citations
Jump To
Cite 1 - [2018] QIRC 136
Cite 2 - [2018] QIRC 136
Milton v TransAdelaide [2003] SAIRC 15
4 citations
Jump To
Cite 1 - [2003] SAIRC 15
Cite 2 - [2003] SAIRC 15
Cite 3 - [2003] SAIRC 15
Cite 4 - [2003] SAIRC 15
Queensland Health v Robinson and Grimley [1999] QIC 14
1 citation
Jump To
Cite 1 - [1999] QIC 14
Sarvestani v State of Queensland (Metro South Hospital and Health Service) [2017] QIRC 85
1 citation
Jump To
Cite 1 - [2017] QIRC 85
Selvachandran v Peteron Plastic Pty Ltd (1995) IR 371
3 citations
Jump To
Cite 1 - (1995) IR 371
Cite 2 - (1995) IR 371
Cite 3 - (1995) IR 371
Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914
1 citation
Jump To
Cite 1 - (1993) 144 QGIG 914

Cases Citing

Case NameFull CitationFrequency
Cleal v State of Queensland (Queensland Health) [2023] ICQ 65 citations
1

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