Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2023
  4. Loveridge v State of Queensland (Queensland Ambulance Service) (No. 2) - [2023] QIRC 207

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Loveridge v State of Queensland (Queensland Ambulance Service) (No. 2)[2023] QIRC 207

Loveridge v State of Queensland (Queensland Ambulance Service) (No. 2)[2023] QIRC 207

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Loveridge v State of Queensland (Queensland Ambulance Service) (No. 2) [2023] QIRC 207

PARTIES:

Loveridge, Jonathan Charles

(Applicant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO.:

TD/2020/116

PROCEEDING:

Application for reinstatement

DELIVERED ON:

24 July 2023

HEARING DATES:

19, 20, 21, 22, 25, 26 and 27 October 2021

9 February 2022

MEMBER:

Hartigan DP

HEARD AT:

Brisbane

ORDER:

  1. The application for reinstatement is dismissed.
  1. If the Respondent intends to apply for any costs order, the application for costs is to be filed and served within 28 days.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – where applicant employed as an Advanced Care Paramedic with Queensland Ambulance Service – where applicant and another Advanced Care Paramedic responded to a call at a residential aged care facility – where elderly patient with physical injuries on her arms was suffering from advanced dementia – where patient behaved aggressively with some resistance being transferred to the stretcher – where applicant observed to strike or slap the patient across the face – where disciplinary proceedings under sections 18A and 18 B of the Ambulance Service Act 1991 – where investigation carried out – where allegation substantiated – where applicant's employment was terminated for alleged serious misconduct – whether dismissal harsh, unjust or unreasonable – application dismissed

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 316, s 317, s 320, s 321 and s 322.

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

Health Practitioner Regulation National Law (Queensland), s 156

CASES:

Blows v Townsville City Council [2016] QIRC 66

Bostik (Aust) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28

Briginshaw v Briginshaw (1938) 60 CLR 336

Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467

Coleman v State of Queensland (Department of Education) [2020] QIRC 032

Flegg v CMC & Anor [2014] QCA 42

Gilmour v Waddell & Ors [2019] QSC 170

Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258

Laegal v Scenic Rim Regional Council [2018] QIRC 136

Mathieu v Higgins [2008] QSC 209

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

Pillai v Messiter (No 2) (1989) 16 NSWLR 197

Queensland Teachers' Union of Employees (for Norman Wayne Armstrong) v State of Queensland acting through Department, Education, Training and Arts [2009] QIRC 11

Nesbit v Metro North Hospital and Health Service [2020] QIRC 66

Stark v P & O Resorts (Heron Island) (1993) 144 QGIG 914

Wang v Crestell Industries Pty Ltd (1997) 73 IR 454

APPEARANCES

Mr E. Shorten of Counsel instructed by Ms E. Voulcaris of Devaneys Law for the Applicant.

Mr J. Marr of Counsel instructed by Ms C. Selby of Crown Law for the Respondent.

Reasons for Decision

The application

  1. [1]
    Mr Jonathon Loveridge ('Mr Loveridge') applies for reinstatement[1] following the termination of his employment from his substantive position as an Advanced Care Paramedic with the Queensland Ambulance Service ('QAS') working out of the Burleigh Heads Ambulance Station.  Mr Loveridge contends that the dismissal was harsh, unjust and unreasonable.[2]
  1. [2]
    Mr Loveridge's employment was terminated for misconduct. Relevantly, the allegation that was substantiated and caused Mr Loveridge's employment to be terminated was that on 11 June 2019 Mr Loveridge struck a patient ('the allegation').[3] The patient was an elderly dementia patient.
  2. [3]
    Mr Loveridge seeks the following relief in his application: [4]
  • Reinstatement in his former position (or as nearly as is possible) without prejudice to the employee's former conditions of employment and remuneration lost between the date the dismissal took effect 20 November 2020 and the date of reinstatement; or
  • Re-employment in another position that the employer has available and that the Commission considers suitable.
  • However, if the Commission considers reinstatement or re-employment would be impracticable, the Applicant seeks that the Commission make an order that the employer pay the employee an amount of compensation the Commission considers appropriate.
  1. [4]
    Prior to the termination of employment an investigation was commenced, and evidence was gathered in respect of the allegation. Following a show cause process, the QAS determined that the allegation was substantiated and that the conduct amounted to misconduct and formed a ground for Mr Loveridge to be disciplined pursuant to s 18A(1)(b) of the Ambulance Service Act 1991 (Qld) ('AS Act') ('the disciplinary finding decision').
  1. [5]
    Following a further show cause process, Mr Loveridge was dismissed from his employment on 20 November 2020 ('the disciplinary penalty decision').
  1. [6]
    Mr Loveridge contends that the dismissal was unfair in that it was harsh, unjust or unreasonable.[5] The phrase "harsh, unjust and unreasonable" was considered in Bostik (Aust) Pty Ltd v Gorgevski (No 1)[6] by the Full Court of the Federal Court.[7] After stating that the words were ordinary non-technical words intended to apply to a variety of situations, the Full Court concluded that "a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable."[8] The Full Court noted that relevant considerations included, the circumstances leading to the decision to dismiss and also the effect of the decision on the employee. It was further noted that any harsh effect on the individual employee, whilst clearly relevant, is not conclusive. Other matters should be considered, including the gravity of the conduct.
  1. [7]
    The grounds Mr Loveridge rely on in seeking reinstatement include the following:
  1. (a)
    The investigation miscarried and the evidence was contaminated; and
  1. (b)
    The relevant decision-makers were led into error by the investigation report and otherwise carelessly progressed the matter.
  1. [8]
    I will consider these grounds within the context of the matter and I will also consider the matters that I must have regard to pursuant to s 320 of the Industrial Relations Act 2016 (Qld) ('IR Act').
  1. [9]
    Mr Loveridge carries the onus of proving that the dismissal was unfair pursuant to s 316 of the IR Act.[9]
  1. [10]
    However, as Mr Loveridge was dismissed following a disciplinary process under the AS Act where the chief executive or delegate has to be reasonably satisfied that the employee has been guilty of misconduct, it will fall upon the QAS to establish, to the reasonable satisfaction of the Commission, that Mr Loveridge was guilty of the conduct as alleged.[10]
  1. [11]
    A finding that Mr Loveridge's dismissal was not authorised by the relevant provisions of the AS Act is not determinative of whether Mr Loveridge's dismissal was unfair.[11] However, if such a finding were made, and it was not compatible with the understanding between Mr Loveridge and the QAS about the circumstances in which the QAS was liable to dismiss, it would "…be but a short step to conclude that the dismissal was unjust"[12].
  1. [12]
    After the conclusion of the evidence and after the filing of written submissions, counsel for the QAS, submitted, seemingly for the first time during oral closing submissions, that the Commission should not follow a line of authorities that included the decision of Coleman v State of Queensland (Department of Education) ('Coleman').[13] The relevant principle is that which I have referred to in paragraph [10] above and appears in Coleman at paragraph [69] as follows:[14]

In applications by dismissed employees under ch 8, pt 2 of the Act, following the employee being dismissed after a discipline process under the PS Act, where the relevant chief executive or delegate has to be reasonably satisfied the employee has been guilty of misconduct, the onus of proof falls upon the respondent to establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct as alleged.

 …

  1. [13]
    Relevantly, it was submitted by counsel for the QAS that on the proper construction of the IR Act together with the AS Act, the relevant inquiry for the Commission to make is whether it was reasonably open, on the evidence, for the decision maker to be reasonably satisfied that misconduct occurred.[15]
  1. [14]
    In support of its position, the QAS referred to the decision of Laegal v Scenic Rim Regional Council[16] ('Laegal') which in turn referred to the decision of Stark v P & O Resorts (Heron Island)[17]  ('Stark'). The relevant extract from Stark referred to in Laegal was as follows:[18]

Where… an application... is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task of the Commission is to assess whether it should intervene to protect the applicant against a decision which is fundamentally one for the employer to make. Ordinarily intervention will be justified only where the employer has abused the right to dismiss. Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, will be held immune from interference by the Commission….

…

  1. [15]
    However, the reference to Stark in Laegal was not made in consideration of where the onus lies. It was referenced in the third last paragraph of the decision when consideration was being made as to whether the termination was "harsh, unjust or unreasonable". Against the QAS's position with respect to the approach to be taken to determine where the onus lies is the line of authorities commencing with Gold Coast District Health Service v Walker[19] ('Walker') and more recent decisions including Coleman[20]. I also followed the approach of Walker and Coleman in Nesbit v Metro North Hospital and Health Service.[21]
  1. [16]
    It was the QAS's submission that the principle enunciated in Coleman[22] should not be adopted in this proceeding.[23]
  1. [17]
    However, the QAS did not submit how the evidence, including fresh evidence, before the Commission should be dealt with if the approach in Coleman was not to be followed. I consider the way that both parties ran their respective case (until at least the closing submissions) was in such a way so as to adduce evidence that would or would not establish to the reasonable satisfaction of the Commission, that Mr Loveridge was guilty of the conduct alleged.
  1. [18]
    In the circumstances of this matter and the way in which the onus question was raised and argued by the QAS, I am not presently persuaded that the approach in Coleman should not be followed.
  1. [19]
    Further, the civil standard of proof, being on the balance of probabilities, applies to the determination to be made in this matter. The principles enunciated in Briginshaw v Briginshaw[24] ('Briginshaw') apply to the relevant standard of proof. Whilst not altering the civil standard of proof, the principles in Briginshaw, identify that the nature and gravity of the subject matter may be considered when determining if the standard of proof has been met.[25]
  1. [20]
    It is not in dispute between the parties that the Briginshaw[26] principle applies.

Issues in dispute

  1. [21]
    The issues for my consideration are:
  1. (a)
    did Mr Loveridge engage in the conduct as alleged?;
  1. (b)
    to the extent that Mr Loveridge did engage in the conduct as alleged, was he guilty of 'misconduct' within the meaning of the AS Act, s 18A(1)(b) and s 18A(5)(a)?;
  1. (c)
    was termination of Mr Loveridge's employment harsh, unjust or unreasonable within the context of s 320 of the IR Act?; and
  1. (d)
    if so, whether any remedies flow from the termination of employment?

Statutory framework and relevant principles

The Ambulance Service Act 1991

  1. [22]
    Mr Loveridge was terminated in purported reliance on s 18B of the AS Act.  Relevantly, ss 18A and 18B of the AS Act provide as follows:

18A Grounds for discipline

  1. (1)
    The chief executive may discipline a service officer if the chief executive is reasonably satisfied the officer has -

...

  1. (b)
    been guilty of misconduct; or

...

  1. (5)
    In this section -

 misconduct means -

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

Example of misconduct -

victimising another service officer in the course of the other officer's employment in the ambulance service

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

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

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

 Examples of disciplinary action –

  • termination of employment
  • reduction of classification level and a consequential change of duties
  • transfer or redeployment to other ambulance service employment
  • forfeiture or deferment of a remuneration increment or increase
  • reduction of remuneration level
  • imposition of a monetary penalty
  • if a penalty is imposed, a direction that the amount of the penalty be deducted from the officer’s periodic remuneration payments
  • a reprimand

…

  1. [23]
    In determining the reasonableness of a decision under ss 18A or 18B of the AS Act, the question is whether the decision, "...was so unreasonable that it lacked an evident and intelligible justification when all relevant matters were considered".[27]
  1. [24]
    Mr Loveridge submits that if the Commission is not satisfied he is guilty of the alleged misconduct, it would find there was no evident and intelligible justification for his dismissal pursuant to the AS Act.  Mr Loveridge argues that had the QAS fairly and carefully investigated the Incident and effected the disciplinary process, it would not have arrived at the decision he was guilty and ought to be dismissed:[28]

... The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury.  This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided.

(citations omitted)

  1. [25]
    The QAS submitted that in Mathieu v Higgins,[29] Daubney J considered the meaning of 'misconduct' in the context of the then applicable Queensland Ambulance Service Discipline Policy, s 10(a).  The term ''misconduct'' was defined in that policy as ''disgraceful or improper conduct in an official capacity''.[30]  Justice Daubney cited with approval the reasoning of Kirby P (as his Honour then was) in Pillai v Messiter (No 2),[31] and held that:[32]

... "misconduct," to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.

…

  1. [26]
    In Coleman,[33] Merrell DP referred to this definition in the context of determining the application of 'misconduct' in s 187(1)(b) and (4) of the Public Service Act 2008 (Qld) ('the PS Act').  The definition of 'misconduct' in the AS Act, s 18A(5)(a), is in the same terms as the definition in the PS Act.[34]
  1. [27]
    In Coleman, it was noted that other than the definition of 'misconduct' in s 187(4), the PS Act did not provide any guidance as to what it is meant by 'inappropriate' or 'improper' conduct and went on to find:[35]

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.

  1. [28]
    I consider that a similar approach should be adopted in respect to the meaning of 'misconduct' within the context of s 18A(1)(a) and (5)(a) of the AS Act.[36]

The Industrial Relations Act 2016

  1. [29]
    Mr Loveridge seeks reinstatement or re-employment pursuant to Chapter 8, Part 2 of the IR Act on the basis he was unfairly dismissed.  Whether or not a dismissal is 'unfair' within the meaning of s 316 of the IR Act is a different consideration to whether or not the decision was reasonable under the AS Act. 
  1. [30]
    Section 316 of the IR Act provides when a dismissal is unfair as follows:

316 When is a dismissal unfair

A dismissal is unfair if it is harsh, unjust or unreasonable.

  1. [31]
    Section 320 of the IR Act provides for the matters that must be considered when determining if the dismissal was unfair as follows:

320 Matters to be considered in deciding an application

  1. (1)
    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
  1. (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 performance; or
  1. (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. [32]
    If the Commission is satisfied the dismissal was unfair, the Commission is empowered by s 321 of the IR Act to order reinstatement.  Under s 322 of the IR Act the Commission also has the power to order compensation if it considers reinstatement impracticable.[37]

Background

  1. [33]
    Mr Loveridge had been employed with the QAS since 23 July 2007. On 20 November 2020 his employment was terminated[38] effective immediately following a show cause disciplinary process.  At the time of his termination, Mr Loveridge was employed as an Advanced Care Paramedic 2 stationed at the Burleigh Heads station.[39]
  1. [34]
    As at 11 June 2019, Mr Loveridge had undertaken relevant training commencing on 25 September 2008 until 1 June 2019 which included Managing Personal Stressors in the Work Environment; Situational Awareness for Everyday Encounters; Occupational Safety Training Violence Prevention and Q4 Tier 1 Geriatric Assessment.[40]

Supervision of Ms Baxter

  1. [35]
    Ms Baxter commenced at the Burleigh Heads station in the Graduate Paramedic Program in December 2018.[41]  At her own request, Ms Baxter's period of supervision was extended to enable her to gain more experience in high acuity work.[42]  In June 2019 Ms Baxter was under this extended period of supervision.[43]
  1. [36]
    Mr Loveridge was rostered together with Ms Baxter during the time she was undertaking the Graduate Paramedic Program and also during her extended supervision period.[44]  Mr Loveridge was Ms Baxter's mentor and supervisor.[45]

Attendance at Opal Varsity Rise

  1. [37]
    On 11 June 2019, Mr Loveridge was rostered on a 12-hour shift commencing at 7.00am and finishing at 7.00pm.[46] His partner on that shift was Ms Baxter. At 6.13pm Mr Loveridge and Ms Baxter were dispatched to attend at an aged care residential facility, the Opal Varsity Rise, 14 Lake Street, Varsity Lakes ('Opal Varsity Rise').[47]
  1. [38]
    The Incident Detail Report[48] indicates the following information in relation to the nature of the call out to Opal Varsity Rise, ''DX very aggressive - has open wounds on her arms and won't keep dressings home [sic] - has attacked staff and residents.  Pt located on ground floor".
  1. [39]
    Mr Loveridge and Ms Baxter arrived at Opal Varsity Rise at 6.27pm[49] and departed with the patient at 6.44pm,[50] arriving at the Robina Hospital approximately 10 minutes later.[51]
  1. [40]
    It was during their attendance at Opal Varsity Rise that it is alleged Mr Loveridge struck the patient. The evidence with respect to the allegation will be dealt with further below.

The complaint – alleged assault of elderly patient at Opal Varsity Rise and subsequent steps

  1. [41]
    The General Manager of Opal Varsity Rise, Ms Carolyn Provenzano telephoned the QAS Operations Centre at approximately 7.16pm on 11 June 2019 this telephone call was recorded[52] on the QAS Complaint Referral Form.[53]
  2. [42]
    The Complaint Referral Form included the following details of the complaint:

…

Complaint against male officer on QAS unit.

Complainant stated that the male officer grabbed the patient by the face and slapped her.

He then verbally abused her, threatening her not to touch him again.

She states male officer then told nursing facility staff off for wasting hospital resources and told them that they should be managing the patient in the nursing facility.

Complainant states that as per the Aged Care Act, she will be lodging a report with QPS and also informing the family. She has requested to be contacted within the next 12 hours with the accused officer's name so it can be included in her police report.

…

  1. [43]
    At approximately 7.25pm on 11 June 2019, Mr Paul Young, the then acting Senior Operations Supervisor, QAS was provided with a copy of the QAS Complaint Referral Form.[54]
  1. [44]
    Mr Young requested Ms Adriana Barnes, the acting Operations Supervisor, to meet with Mr Loveridge and Ms Baxter to obtain their version of events.
  1. [45]
    The evidence is that Ms Barnes attended at the Robina Hospital and spoke with both Mr Loveridge and Ms Baxter at the same time. Both Mr Loveridge and Ms Baxter denied any wrongdoing by Mr Loveridge with respect to the patient while at Opal Varsity Rise. It was from this point in time that both Mr Loveridge and Ms Baxter were aware that the allegation had been made.
  1. [46]
    Ms Barnes included her account of her conversation with Mr Loveridge and Ms Baxter in an email sent to Mr Young.
  1. [47]
    Mr Young attended Opal Varsity Rise and met with Ms Provenzano at approximately 8.10pm.[55] During this attendance, Mr Young was provided with copies of handwritten statements under the hand of Ms Samantha Masih, Assistant in Nursing and Mr Jack Bainbrigge, Lifestyle Diversional Therapist, Opal Varsity Rise.[56] Ms Provenzano advised Mr Young he could collect a third statement the following day.[57]
  1. [48]
    Mr Young also spoke to Ms Masih and Ms Church, Enrolled Nurse, whilst he was at Opal Varsity Rise.
  1. [49]
    Mr Young made a contemporaneous note of his attendance at Opal Varsity Rise which he sent to himself by email later that evening.[58] Mr Young did not return to Opal Varsity Rise to collect the third statement the following day.

The telephone calls on 12 June 2019 from Ms Bennett

  1. [50]
    In her evidence, Ms Bennett, Officer in Charge of the Burleigh Heads station said she made telephone calls on 12 June 2019 to Mr Loveridge and Ms Baxter as she had been notified of the complaint made against Mr Loveridge.  Ms Bennett went on to say that during her telephone conversation with Mr Loveridge he told her that he did not do the things as alleged.[59]
  1. [51]
    Ms Bennett also spoke to Ms Baxter and indicated her support for Mr Loveridge. Ms Baxter's evidence was that she felt stressed and pressured to go along with Mr Loveridge's version of events following the telephone conversation.

Referral of complaint to the Ethical Standards Unit

  1. [52]
    On 19 June 2019, Mr Chris Draper, whilst relieving in the position of Assistant Commissioner, Gold Coast LASN received an email from Ms Jenny Gribaudo Executive Manager, Employee Relations concerning the referral of the complaint to the Ethical Standards Unit (ESU).  Ms Gribaudo indicated that the ESU had assessed the complaint as 'suspected corrupt conduct' and referred the matter back to the QAS to manage.[60]
  1. [53]
    Ms Gribaudo also stated the matter had been reported to the Queensland Police Service (QPS) by the nursing home. 
  1. [54]
    The QPS subsequently advised Mr Armstrong then Acting Assistant Commissioner, Gold Coast LASN, that they would not be pursuing the matter further.

20 June 2019: Initial meeting with Mr Loveridge and steps taken

  1. [55]
    On 20 June 2019 Mr Loveridge and his support person attended a meeting with Mr Draper and Ms Jennifer Curtis, Senior HR Consultant, Gold Coast LASN.
  1. [56]
    Ms Curtis made a written record of the meeting and following the meeting, emailed it to Ms Jennifer Gribaudo, and Mr Draper.
  1. [57]
    Ms Curtis' written record of the meeting notes that the following matters were discussed:
  1. (a)
    the ESU had reviewed the complaint and assessed it as ''suspected corrupt conduct";
  1. (b)
    the QAS were waiting on advice from ''an external agency'' prior to proceeding with the matter;
  1. (c)
    Mr Loveridge would be working with another officer and the QAS would ensure that he was not rostered with Ms Baxter; and
  1. (d)
    Mr Loveridge would be provided with an opportunity to provide his version of events.
  1. [58]
    Mr Tony Armstrong returned from leave on or about 24 June 2019. He was briefed in respect of the alleged incident at Opal Rise by Mr Draper and Ms Curtis, and he states that he received a copy of Mr Young's 12 June 2019 2.03am email and attachments.
  1. [59]
    On 12 August 2019, Mr Armstrong and Ms Curtis met with Ms Baxter with Ms Bennett acting as her support person. During the course of the meeting Ms Baxter indicated that she did not see what Mr Loveridge was accused of doing. 
  1. [60]
    Following the meeting with Ms Baxter, Mr Armstrong sent an email to Ms Gribaudo on 13 August 2019 and advised that he was unable to ''make a decision regarding the complaint'' and subsequently determined to refer the matter to be formally investigated as a workplace Investigation.
  1. [61]
    On 22 August 2019, Mr Armstrong sent an email to Opal Varsity Rise seeking to arrange interviews with the staff who witnessed the Incident.[61]
  1. [62]
    On 23 August 2019, Mr Armstrong directed that the Terms of Reference for the workplace investigation be prepared.[62] These were signed off by Assistant Commissioner John Hammond on 18 September 2019 whose decision it was to instigate the formal workplace investigation.[63]

The Investigation

  1. [63]
    The Terms of Reference specified the allegations for investigation.  Relevant to this proceeding is the following allegation:

4. That on 11 June 2019, Officer Jonathan Loveridge assaulted [the patient].

  1. [64]
    The investigator appointed was Ms Sandra Brightwell, a Principal Complaints Officer employed in the Office of the Medical Director.  It was said that Ms Brightwell was independent of the QAS Gold Coast LASN although she was an employee of the QAS.[64]
  1. [65]
    Mr Loveridge was given notice of the workplace investigation in a letter outlining the allegations insofar as they concerned him and put him on notice that he was required to attend an interview and meet with Mr Hammond and Ms Curtis on 11 November 2019.[65]
  2. [66]
    On 12 November 2019, Ms Baxter was also notified of the workplace investigation in person with Mr Hammond and Ms Curtis and was provided a letter which outlined the allegations that concerned her, and the time and place of her interview.[66]
  1. [67]
    Ms Brightwell met with and conducted recorded interviews with the following witnesses:

a.Jack Bainbrigge on 2 October 2019;[67]

b.Samantha Masih on 22 October 2019;[68]

c.Tyharna Church on 4 November 2019;[69]

d.Amy Baxter on 21 November 2019;[70]

e.Jonathan Loveridge on 27 November 2019;[71] and

f.Natasha Bennett on 11 December 2019.[72]

  1. [68]
    As part of the investigation, Ms Brightwell emailed Ms Baxter a document entitled ''Clinical Question for Baxter CN & SJB edits''.[73] Ms Brightwell requested Ms Baxter to respond to 'a number of adverse comments about you during Mr Loveridge's interview' and to respond to additional questions about the matter.
  1. [69]
    Ms Baxter responded on 16 December 2019. In addition to providing a response to the alleged adverse comments, Ms Baxter significantly provided the following altered account of the incident:[74]

NOTE:  When I was doing up the lower leg seatbelts ACP Loveridge was leaning over the pt attempting to do up her seatbelts, the patient became very agitated and aggressive attempting to strike him in the face and yelling at him.  As this was happening I walked quickly around to the head of the stretcher to get the shoulder seatbelts, and as I walked around I heard officer Loveridge raise his voice at her to tell her to stop, and she hit him in the face, ACP Loveridge raised his right hand with an open palm, it appeared as though he was going to slap the patient on the left cheek.  His hand slowed as he got closer to her cheek and his hand then hit her cheek - from what I can remember I would describe the connection as a light/medium tap, with minimal force behind the motion.  I don't believe the force behind the motion was enough to hurt the patient, or leave any marks.  The patient's face appeared surprised.  I could tell that ACP Loveridge immediately regretted his actions, and at hospital as after we handed over the patient when we were about to leave he stated that he regretted his actions that night and no more was mentioned of the incident.

(underlining added)

  1. [70]
    This written response by Ms Baxter is the first occasion on which Ms Baxter altered her version of events by stating that Mr Loveridge's "hand hit [the patient's] cheek".
  2. [71]
    Ms Brightwell subsequently sent Mr Loveridge an email seeking his response to certain matters arising out of the Investigation interviews, including the additional information provided by Ms Baxter on 16 December 2019.[75]
  1. [72]
    Mr Loveridge provided a response[76] to Ms Brightwell's email. His response included the following relevant extract:[77]

Since the complaint was originally reported to me I have been mystified as to how my actions could have been misinterpreted as 'slapping' the patient, as I was originally advised.  I have since come to understand how differently people can perceive and recall an event.  During the events I have described in the paragraph above both my hands are occupied for the most part, either because the patient is holding on to my hand or vice versa.  The only time my right hand is free is when I have pulled the [sic] my hand from of [sic] the patients [sic] grip and quickly reached up above her left shoulder, next to her head, to grab the seatbelt.  I believe that this action has mistakenly given the impression that I have struck the patient when this is not the case.

  1. [73]
    The final version[78] of the Investigation Report was issued to Mr Hammond on 28 February 2020.[79] 

The show cause process

  1. [74]
    Mr Hammond gave evidence that he considered the investigation report, including its attachments, and determined that the allegations were 'capable of substantiation'.[80]
  1. [75]
    On 5 May 2020, Mr Hammond issued a show cause letter that put five separate allegations to Mr Loveridge ('First Show Cause Letter'). Relevantly, Allegation Four was in the following terms:

 That on 11 June 2019, you struck [the patient] on the face with your hand.

  1. [76]
    Attached to the First Show Cause Letter were a number of documents, including the Investigation Report with attachments.[81]
  1. [77]
    On 13 June 2020, Mr Loveridge responded to the First Show Cause Letter ('First Show Cause Response').
  1. [78]
    In the First Show Cause Response, Mr Loveridge complained that the QAS had not sought Ms Baxter's explanation as to why she had withdrawn her original version of events that she did not see Mr Loveridge strike the Patient.
  1. [79]
    Mr Draper[82] gave evidence that following consideration of the First Show Cause, and in particular, Mr Loveridge's concern that Ms Baxter had not been followed up, he wrote to Ms Baxter and sought further information from her.[83]
  1. [80]
    Ms Baxter provided a response to this request by correspondence dated 22 July 2020.[84]
  1. [81]
    On 6 August 2020, Mr Draper subsequently issued a further letter ('Supplementary Show Cause Letter') putting information to Mr Loveridge which was extracted from Ms Baxter's 22 July 2020 response as follows:[85]

I admit that I initially denied seeing/hearing Officer Loveridge hit the patient's cheek with an open hand.

I am deeply remorseful for delay in revealing the truth and I regret not coming forward with this information immediately.

I admit that that was wrong, and that I should have contacted a supervisor as soon as the incident occurred.

If I had my time again, I would have requested back up to help with the patient, and I would have contacted a supervisor.

From this situation I have learnt that no matter how intimidated or fearful of retribution I was, I should have advocated in the patient's best interests.

…

  1. [82]
    Mr Loveridge was provided with an opportunity to respond to the Supplementary Show Cause Letter and did so by written response dated 18 August 2020 ('Supplementary Show Cause Response').[86]
  1. [83]
    Mr Draper referred the matter to the Deputy Commissioner, Craig Emery on the basis that Mr Draper did not have the appropriate HR delegation to determine the matter.[87]
  1. [84]
    Mr Emery received the referral memorandum, together with the relevant documents, on Monday 31 August 2020.[88] As Mr Emery is the relevant decision maker, his evidence as to his process of deliberation is critical to my consideration. I will consider his evidence in further detail below.
  1. [85]
    On 8 September 2020, Mr Loveridge was suspended on full pay pursuant to s 18M of the AS Act.[89]
  1. [86]
    In Mr Loveridge's Show Cause Response he submitted the following:

I have provided the Investigator with evidence that others may have thought I touched [the Patient's] face when I reached for the seat belt, this has not been put to the witnesses as an explanation.

(Mr Loveridge's alternative version of events).

  1. [87]
    As a consequence, Mr Emery directed that[90] Ms Brightwell contact the witnesses including Ms Baxter, Ms Masih and Mr Bainbrigge by email[91] to put Mr Loveridge's alternative version of events to them.
  1. [88]
    Ms Baxter provided the following response to Mr Loveridge's alternative version of events:[92]

Good evening Sandra,

I stand by my statement on December 16, 2019, and do not believe that what I saw could have been mistaken in anyway possible. To confirm again, I did see officer Loveridge slap the patient on the left cheek with an open palm.

  1. [89]
    Ms Masih provided the following response to Mr Loveridge's alternative version of events:[93]

 Hi there,

I would like to confirm that I stick by my original statement as to what happened that evening at opal varsity rise.

  1. [90]
    Mr Bainbrigge provided the following response to Mr Loveridge's alternative version of events:[94]

Hi Sandra, thank you for your email

I have read your email with the male paramedics [sic] response and QAS's response thoroughly.

I definitely seen [sic] the male paramedic force his hand onto the elderly female residents [sic] face, then slap her. After he her warned twice that he would do so.

My observations were not mistaken, I am sure.

And I will stick to my original written statement and verbal statement from 11/06/2019 & 2nd October 2019.

  1. [91]
    Mr Emery's evidence was that these responses were included in the material considered by him.[95]

The disciplinary finding decision

  1. [92]
    On 6 October 2020, Mr Emery notified Mr Loveridge that he had determined:[96]
  1. (a)
    that allegations one, two, three and five were not substantiated;
  1. (b)
    that allegation four was substantiated (the allegation that Mr Loveridge struck the patient); and
  1. (c)
    that with respect to allegation four, Mr Loveridge was guilty of misconduct within the meaning of s 18(5) of the AS Act.
  1. [93]
    Mr Emery provided extensive reasons for the disciplinary finding.
  1. [94]
    Mr Loveridge was further advised that:
  1. (a)
    he was liable for discipline pursuant to s 18B of the AS Act;
  1. (b)
    that Mr Emery was giving serious consideration to terminating Mr Loveridge's employment from the QAS although no final determination would be made until Mr Loveridge was given an opportunity to respond; and
  1. (c)
    his response would be considered in the final determination of the disciplinary action along with other relevant listed considerations.
  1. [95]
    Mr Loveridge was provided with an opportunity to show cause as to why his employment should not be terminated ('Second Show Cause Letter').[97]

The disciplinary penalty decision

  1. [96]
    Mr Loveridge sought an extension to respond to the Second Show Cause Letter until 26 October 2020 and subsequently requested that he be permitted to respond orally to the Second Show Cause Letter.
  1. [97]
    On 26 October 2020, Mr Loveridge, together with his legal representative attended Mr Emery's office and the verbal show cause meeting took place. Mr Michael Anderson was also in attendance with Mr Emery. At the conclusion of the meeting, Mr Loveridge also provided his written response ('Second Show Cause Response').[98]
  1. [98]
    By correspondence dated 20 November 2020, Mr Emery notified Mr Loveridge that he had determined to terminate Mr Loveridge's employment, effective as at that date.[99]
  2. [99]
    Mr Emery also provided extensive reasons for his determination to terminate Mr Loveridge's employment.

Did Mr Loveridge engage in the conduct alleged in respect of the allegation, and to the extent that Mr Loveridge did engage in the conduct as alleged, did he engage in misconduct within the meaning of s 18A(5) of the AS Act?

The Allegation

  1. [100]
    Whilst five allegations were initially put to Mr Loveridge during the show cause process only one is relevant to this proceeding. That is because, Mr Emery, in the disciplinary finding decision, found that only one out of the five allegations was substantiated.
  1. [101]
    The relevant allegation was put in the following terms:

That on 11 June 2019, you struck [the patient] on the face with your hand.

  1. [102]
    The patient was a resident at Opal Varsity Rise. As noted above, the patient was an elderly dementia patient. The patient was located in a secure ward that accommodated dementia patients. The patient was said to be frail and small in stature and at that time was suffering from advanced dementia.
  1. [103]
    The QAS alleges that the conduct referred to in the allegation is not conduct that meets the requirements set out in the Clinical Practice Manual ('CPM') and does not meet a standard of the Code of Conduct for the Queensland Public Service, in particular, s 3.1(e).
  1. [104]
    The CPM was referred to as follows:

…

  • The Clinical Practice Manual (CPM) – Use of Force (Attachment 16) states, that the use of force may be a component of pre-hospital care, with the QAS suggesting restraint could be considered only in the following circumstances:
  • when all other alternatives to avoid harm to the patient or others have been considered and are inappropriate or ineffective;
  • when the benefits outweigh the risk and distress (even temporary) that may be caused to the patient;
  • when a patient has the capacity to provide consent and they have done so;
  • where a patient lacks the capacity to consent, such consent has been provided by an appropriate substitute decision-maker, or the healthcare is in accordance with the legal requirements; and
  • in accordance with:
  • Paramedic Safety Guidelines, when appropriate safety measures have been implemented.
  • QAS Clinical Practice Guidelines, Clinical Practice procedures and Drug Therapy Protocols.
  • Good clinical practice.
  • In accordance with Legal requirements and any relevant law.
  • The CPM – Use of Force (Attachment 16) further states, for patients who lack capacity to consent the use of force may be appropriate where:
  • The restraint constitutes 'healthcare' that is, where the practice, as a treatment, has a therapeutic effect upon a patient's physical or mental condition; and should be carried out urgently to:
  • meet imminent risk to the adult's life or health; or
  • should be carried out urgently to prevent significant pain or distress to the adult and it is not reasonably practical to get consent from a person who may give it under the Guardianship and Administration Act 2000 (Qld) or the Powers of Attorney Act 1998 (Qld).
  • The CPM – Use of Force (Attachment 16) also states:
  • The use of force including initiating physical (Note: always undertaken by QPS) or chemical restraint (sedation) on a patient receiving health services is a very serious matter.

…

  1. [105]
    The Code of Conduct contains the ethics principles and their associated set of values prescribed in the Public Sector Ethics Act 1994. The Code of Conduct sets out the standards of conduct for each ethics principle. The relevant principles include:
  1. (a)
    Principle 1: Integrity and impartiality;
  1. (b)
    Principle 2: Promoting the public good;
  1. (c)
    Principle 3: Commitment to the system of government; and
  1. (d)
    Principle 4: Accountability and transparency.
  1. [106]
    The Code of Conduct sets out standards of conduct for each principle. The standards of conduct for Principle 3 includes "3.1(e) Commit to our roles in public service".
  1. [107]
    Clause 3.1 of the Code of Conduct falls under the heading "Standards of Conduct". Clause 3.1(e) relevantly provides:

3.1 Commit to our roles in public service

Our role is to undertake our duties, and to give effect to the policies of the elected government, regardless of its political complexion.

We will:

  1. adhere to the policies, organisational values and organisational documents of our employing agency.

…

Information considered in the show cause process

  1. [108]
    In making the decision substantiating the allegation, Mr Emery had regard to:
  1. (a)
    the Investigation Report and attachments;
  1. (b)
    the First Show Cause Letter;
  1. (c)
    the First Show Cause Response;
  1. (d)
    the Supplementary Show Cause Letter;
  1. (e)
    the Supplementary Show Cause Response;
  1. (f)
    the transcript from the oral show cause meeting between Mr Emery and Mr Loveridge; and
  1. (g)
    the emails from Ms Brightwell to, and response from, Ms Baxter, Ms Masih and Mr Bainbrigge.
  1. [109]
    Included in the Investigation Report is a copy of Mr Loveridge's Safety, Health and Environment Report ('SHE Report').[100] Relevantly, Mr Loveridge drafted the SHE Report[101] following his meeting with Ms Barnes at the Robina Hospital of the evening of 11 June 2019. Consequently, at the time Mr Loveridge wrote the entry he was aware that an allegation had been made and the nature of the allegation. Relevantly, Mr Loveridge records the following:[102]

 …

I initially approached the patient with caution. At this time the patient would not make eye contact and appeared distracted. I have moved into her line of sight in an attempt to engage wit her. At this time she has clenched her fist and raised her arm as if to strike me, so I have backed away. As I now have her attention I have explained that I believe she needs to attend hospital and that I would like her to come and sit down on the stretcher. The patient certainly heard me and responded verbally, though nothing comprehensible. I have continued to engage with the patient over the next 10 minutes, talking to her gently and trying to encourage her to the stretcher. I feel that I am making some progress but then the patient has again raised her hand to me and I have had to back away. At this time I have stated, "If you hit me, I will have to defend myself". I once again approached the patient slowly and talking gently. A this point I have been holding my hands out in front of me and that patient has taken my hands in hers with a strong grip squeezing my fingers. Without moving my fingers I have used my thumbs only to gently grip the patient's hands. I have taken this opportunity to slowly walk backwards towards the stretcher, which is only 2 meters behind me. The patient has followed without me exerting  any force.

We have then turned around and I have verbally encouraged the patient to sit down on the stretcher, which she has done. I have then been able to release my left hand from her grip and bent down intending to swing her legs up onto the stretcher. While I have been doing so the patient has struck me to the left side of the jaw with her right fist. While the blow was ineffectual and I was not hurt I was shocked and stated loudly "That's assault". The patient appeared somewhat taken aback and at this point I was able to take hold of her right hand. I continued to hold both her hands gently in her lap while my partner and nursing home staff wrapped the patient in a sheet and loosely applied seatbelts, at which point I released the patient's hands.

I then raised the stretcher and then we then made our way to the vehicle and transported the patient to hospital.

  1. [110]
    This extract is relevant as it is the first account Mr Loveridge gave of the evening.[103] Relevantly, Mr Loveridge states that he said the words "If you hit me, I will have to defend myself" and "That's assault" to the patient. Mr Loveridge has consistently denied that he struck the patient.  His version of the attendance at Opal Varsity Rise will be considered further below.

Mr Emery's findings

Disciplinary finding decision – substantiation of allegation

  1. [111]
    Mr Emery determined that the allegation was substantiated on the basis that Mr Emery preferred the evidence of Ms Masih, Mr Bainbrigge and Ms Baxter to the extent that their evidence differed from Mr Loveridge. Relevantly, Mr Emery accepted the evidence from each of Ms Masih, Mr Bainbrigge and Ms Baxter to the extent that they each gave evidence that they observed Mr Loveridge strike the patient on the face.
  1. [112]
    Mr Emery continued by providing a further basis for the decision by stating:

"… having considered all of the evidence and the corroborating witness statements concerning the tone and number of times you directed warning to the patient such as "if you hit me, I will hit you back"; or "I will defend myself" and "these girls may not defend themselves, but I will", I have discounted the possibility of an act of automation.

Instead you had on a number of occasions warned the patient that you would, in certain circumstances, hit her".

…

  1. [113]
    Mr Emery further determined that he considered there were grounds for Mr Loveridge to be disciplined on the basis that he is guilty of misconduct.
  1. [114]
    As noted above, Mr Loveridge was provided an opportunity to the show cause as to why his employment should not be terminated following the substantiation of the allegation.

Evidence before the Commission

  1. [115]
    The evidence that was considered by Mr Emery in making the decision to substantiate the allegation was tendered into evidence before the Commission.
  1. [116]
    In addition to that evidence, the Commission also had the benefit of hearing additional evidence.
  1. [117]
    That evidence included the evidence of the following witnesses:
  1. (a)
    Mr Loveridge;
  2. (b)
    Ms Bennett;
  3. (c)
    Ms Baxter;
  4. (d)
    Ms Masih;
  5. (e)
    Mr Bainbrigge;
  6. (f)
    Ms Provenzano;
  7. (g)
    Ms Chisango;
  8. (h)
    Mr Young;
  9. (i)
    Mr Armstrong;
  10. (j)
    Mr Hammond;
  11. (k)
    Ms Wood;
  12. (l)
    Mr Draper; and
  13. (m)
    Mr Emery.
  1. [118]
    Relevantly, Ms Wood's evidence was fresh evidence insofar as she was not a witness interviewed during the investigation and accordingly, her account was not considered by Mr Emery. Whilst I have summarised some of the witnesses' evidence in detail, it is not necessary to provide a summary of the evidence of all of the witnesses but where relevant, I will refer to the evidence of the witnesses below.

The evidence of Mr Loveridge

  1. [119]
    As noted above, Mr Loveridge is a senior advanced care paramedic with over 13 years' experience. Significantly, he had an unblemished career until the allegation was made and substantiated.
  1. [120]
    Mr Loveridge has provided his account of 11 June 2019 both in writing and orally. In all accounts provided by Mr Loveridge he has consistently denied that he struck the patient.
  1. [121]
    The earliest account that Mr Loveridge provided was in the SHE Report.[104] The SHE Report was completed by Mr Loveridge after he had been advised by Mr Barnes of the complaint from Opal Varsity Rise.
  1. [122]
    I referred to an extract of the SHE Report above. In the SHE Report, Mr Loveridge also stated, in summary, as follows:[105]

…

  1. Upon arrival, the Patient was presenting as restless and agitated. I was provided a handover by the nurse in charge who detailed the Patient's medical history, including dementia, and informed me that the Patient had been behaving in an unpredictable, aggressive and violent manner prior to my arrival. Based on my observations and discussions with Opal Varsity staff, I formed the view that the Patient needed to attend hospital for urgent medical attention. Given her age, size and physical condition, I assessed the risk that she posed to me as low.
  2. I explained to the Patient in words to the effect that I believed she needed to attend hospital and that I would like her to come and sit down on the stretcher. Over the course of the next approximately 20 minutes, Opal Varsity staff, Officer Baxter and I worked towards loading the patient onto a QAS stretcher for transportation to hospital.
  3. As I was loading the Patient onto the stretcher, the Patient struck the left side of my jaw with a closed fist. The blow was ineffectual but I was shocked and said loudly "that's assault". The Patient appeared taken aback and I continued to load her onto the stretcher and apply the seatbelts.
  4. At approximately 6.44 pm, Officer Baxter and I departed Opal Varsity with the Patient and transported her to Robina Hospital. During transport, she continued to be agitated and non-compliant and on several occasions during the transportation to hospital, the Patient struck me on the knee and thigh (though again these blows were ineffectual).
  5. On arrival at Robina Hospital, there was a delay in handing over the Patient due to wait times in the emergency department. During this delay, Officer Baxter and I dressed and bandaged the Patient's wounds. While attending to this task, the Patient again struck me with a closed fist.
  6. While waiting in the emergency department of the Robina Hospital with the Patient on the stretcher, a QAS Operations Supervisor entered the emergency department and told me words to the effect that a complaint relating to the Patient had been received from Opal Varsity. I was not provided any further details about the complaint at that time.
  7. Officer Baxter and I completed the case by handing over the patient at the Robina Hospital to another QAS crew at approximately 7.50 pm.

…

  1. [123]
    During cross-examination, Mr Loveridge agreed that he was extra conscientious to record as much detail as possible in the SHE Report as he was aware of the complaint having been made.[106]  There is no mention in the SHE report that Mr Loveridge reached up and applied the left shoulder harness seatbelt.[107] This is relevant as Mr Loveridge will later contend that this action is potentially what the witnesses saw when they allege they saw Mr Loveridge strike the patient.
  1. [124]
    On 27 November 2019, Mr Loveridge participated in a recorded interview with Ms Brightwell. In attendance as his support person was Ms Voulcaris from Delaney Investigations.
  1. [125]
    During the interview, Mr Loveridge gave his account of events that occurred on 11 June 2019. He stated that upon arriving at Opal Varsity Rise, he and Ms Baxter accessed the dementia wing and spoke to the care staff. He noticed the patient and that she was "absolutely covered in wounds, lacerations" with the worst one "probably a big nine centimetre lac over her left elbow". Mr Loveridge noticed that some of the wounds looked fresh, but they were not actively bleeding.
  1. [126]
    Mr Loveridge states that he conducted his own assessment of the patient. His evidence was that he preferred to make his own assessment on what was presented rather than take a history because it can be unreliable. Mr Loveridge assessed that the patient needed to be taken to hospital.
  1. [127]
    Given the agitated state of the patient, Mr Loveridge said that he and Ms Baxter discussed sedating the patient but for several reasons decided not to. Mr Loveridge and Ms Baxter then started to approach the patient to try and coax her onto the stretcher but it was Mr Loveridge who took the lead. 
  1. [128]
    At some point Mr Loveridge took both of the patient's hands in his and guided her to the stretcher. Mr Loveridge relevantly described his account of the sequence of events as follows:[108]
  1.  

JL

…And as we got to the stretcher, I've encouraged her to sit down, and she did. So I'm thinking, oh, this is, this is going really well, maybe this isn't going to be as difficult as I thought. I've asked her to put her legs up on the stretcher, and she's just not comprehending what I'm requesting. So what I've done is I freed my left hand from her grip. She's still holding, prior to that, she's still holding on to both of my hands while she's sitting in the stretcher. So I freed my left hand and went to one knee on the floor at the side of the stretcher and with the intention of lifting her legs and swinging them on to the stretcher. At this point, with her right hand free, she's actually swung and struck me in the face with her right hand.

  1.  
 

(telephone ringing)

  1.  

JL

Excuse me. I'll just shut that off. I apologise. I thought I'd turned that off. She's swung and struck me. She's struck me with a closed fist to the left side of my jaw, but, to be honest, it was ineffectual at best. I, I was surprised, but I certainly wasn't hurt. But in my surprise at that point, I recollect actually shouting, not shouting, but saying something quite loudly along the lines of, oh, that's assault. I was taken aback. She only struck me the once, and then she's put her, her hand back in her lap. She's now sitting on the stretcher, because I've lifted her legs up while this is occurring. This has all happened at once. So I've lifted her legs up. She's struck me across the face. She's still holding on to my right hand with her left hand, and then she puts her other hand in her lap, and to protect myself as anything else, I've now put my left hand on top of her right hand, just gently, not with any force at all, and I've kept that there for probably the next 10 seconds, and during that time, the care staff, my partner and the RN have wrapped the patient up in a sheet, which was on the stretcher.

  1.  

SB

During that time, sorry, the care staff?

 

  1.  

JL

Yeah, and the RN and my partner, they've all assisted to, as I say, just put a sheet over the patient, put a couple of seatbelts on, put the side of the stretcher up, and then my, I've raised the stretcher up to its operating height, and we’ve gathered up belongings and we've exited the building. We've made our way to the ambulance….

  1. [129]
    After Mr Loveridge had provided his account of events and was questioned about it, Ms Brightwell put some of the other witnesses' version of events to him for his response.
  1. [130]
    Following the interview, Mr Loveridge emailed Ms Brightwell on 27 January 2020[109] as follows:

Having reflected on the statements made by staff at Opal Varsity I am concerned about the comments made regarding my attitude to the patient in this case. I would like to take this opportunity to clarify my position in this regard and provide some further details which may be relevant.

…

  1. [131]
    Mr Loveridge then proceeded to provide further details including those referred to in the following extract:[110] 

... As I have been raising her legs the patient has struck me to the left side of the jaw with her right fist.  While the blow was ineffectual and I was not hurt I was shocked and stated loudly "That's assault".  The patient is now correctly seated on the stretcher and making no attempt to move.  The patient appeared somewhat taken aback and at this point I was able to place her right hand in her lap and gently hold it there. At this point the patient is still gripping my right hand with her left which is also in her lap.  In the meantime my partner and nursing home staff wrapped the patient in a sheet.  At this point I was standing facing the patient, halfway up the stretcher to the patients [sic] left.  ACP Baxter was at the foot end of the stretcher attempting to apply a seatbelt to the patient's lower legs.  I believe that the RN and nursing home staff are either behind me or to my right, at the head end of the stretcher.  At this point I am anxious to get upper seatbelts in place and frustrated this is not happening fast enough.  After a few seconds I have pulled my right hand free of the patients [sic] grip by pulling backwards.  I have then quickly reached up above her left shoulder, next to her head, to grab the seatbelt.  It has taken a few moments for me to free the seatbelt from the sheet before I am able to place it across the patient and then release my left hand from the patients [sic] grip to do it up…

…

Since the complaint was originally reported to me I have been mystified as to how my actions could have been misinterpreted as "slapping" the patient, as I was originally advised.  I have since come to understand how differently people can perceive and recall an event.  During the events I have described in the paragraph above both my hands are occupied for the most part, either because the patient is holding on to my hand or vice versa.  The only time my right hand is free is when I have pulled my hand from of [sic] the patients [sic] grip and quickly reached up above her left shoulder, next to her head, to grab the seatbelt.  I believe that this action has mistakenly given the impression that I have struck the patient when this is not the case.

…

(underlining added)

  1. [132]
    The email of 27 January 2020, was the first occasion on which Mr Loveridge contended that he reached up and grabbed the seatbelt above the patient's left shoulder. The relevance of this is that from this point onwards Mr Loveridge has contended the Opal Varsity Rise witnesses have mistakenly confused his action in grabbing the seatbelt as instead striking the patient's face. In the SHE Report and in the record of the interview Mr Loveridge describes Ms Baxter and the nursing home staff as wrapping the patient in sheets and loosely applying the seatbelt and after that was done, the patient's hands were released. On this important matter before the Commission, Mr Loveridge's evidence was as follows:[111]

…

... Ms Baxter will apparently give evidence that she passed you the left shoulder strap.  What do you say about that?---No, that's absolutely incorrect.

What's the correct position?---As I said, I was - I was sort of crouching in front of the patient.  She was holding my right hand in her left hand and I was covering her other hand with my hand, just to avoid her hitting me, or hitting anyone else.  And after 10 seconds or so I was hoping that someone was going to pass me the seatbelt, but it never happened.  So I had to pull my hand - my right hand away sharply, and then reach up and grab it myself.

…

  1. [133]
    Accordingly, whilst Mr Loveridge has maintained his denial of the allegation throughout the process, his evidence especially as to the reaching for the seatbelt has evolved. That issue became an important issue in this proceeding because Mr Loveridge seeks to rely on his alternative version of events with respect to this to provide a plausible explanation as to why several Opal Varsity Rise workers have consistently maintained that they witnessed him strike the patient.
  1. [134]
    As noted above, in the SHE Report, Mr Loveridge states that he did say to the patient "that's assault". Mr Loveridge states that these words were an instinctive response to the actions of the patient attempting to strike him.
  1. [135]
    Under cross-examination, Mr Loveridge accepts that such a reaction is inconsistent with his years of experience as a senior paramedic. Mr Loveridge sought to explain the reasons as follows:[112]

 ---Yes. It’s definitely something that I regret. It’s something I was very conscious of immediately afterwards and that’s why I know exactly what I said because it stuck in my head. I felt bad about it.

 …

  1. [136]
    Further, Mr Loveridge was cross-examined with respect to saying the words "if you hit me, I'll have to defend myself". He was asked whether such a statement was inappropriate. In response Mr Loveridge said,  "Pointless, really".[113]

Ms Masih's evidence

  1. [137]
    On 11 June 2019, Ms Masih was employed by Opal Varsity Rise as an Assistant in Nursing. At the time, Ms Masih worked in all units but specialised in the dementia ward known as Aberdeen at Opal Varsity Rise.
  1. [138]
    Ms Masih had experience working with the patient and was aware of techniques to manager her behaviour. Ms Masih states the ambulance was called on 11 June 2019 as the staff were unable, because of the patient's confused and agitated state, to dress the patient's wounds and she was not responsive to her medication which usually calms her.
  1. [139]
    Ms Masih observed Mr Loveridge and Ms Baxter from the time they entered Aberdeen. Ms Masih recognised Mr Loveridge as she had seen Mr Loveridge pick up other patients from Opal Varsity Rise previously. 
  1. [140]
    Relevantly, Ms Masih observed the conversation between Ms Church and Mr Loveridge. Ms Masih considered Mr Loveridge's demeanour towards Ms Church to be "abrupt and rude"[114] and critical of the need to send the patient to hospital.
  1. [141]
    During cross-examination, Ms Masih accepted that during the handover with Ms Church, Mr Loveridge said words to the effect of:[115]
  1. (a)
    "it's really not appropriate for the patient to be transported to and from hospital so much";
  1. (b)
    "doing that puts everyone at risk"; and
  1. (c)
    "the patient's current arrangement obviously was not working".
  1. [142]
    Ms Masih then observed Mr Loveridge approach the patient to assist her to the stretcher. Ms Masih described what she observed in her evidence as follows:[116]

And then once [the patient] had been guided down onto the stretcher, do you recall the positioning of her legs at this point in time?---They were – she was in a seating position on the – like, on the side of the stretcher, so she still needed to put her legs up.

And so once she was in a seated position on the stretcher, what happened next?---The male officer guided her legs up and she has jumped as well, because she has moved and now she’s in a semi-reclined position on the stretcher.

I see. And when you say “semi-reclined position on the stretcher”, are you able to describe - - -?---Her - - - 

- - - the stretcher - - -?---Her legs are up, so she’s laying on the stretcher, but the back of it’s up, so she’s – her back is sitting up, but her legs are, like, a - - -

Was her back fully upright, do you think?---I’m not sure if it was fully up. I don’t know how far up they go.

No worries. And you mentioned before that she made a bit of a gesture. Can you explain that in a little bit more detail?---She kind of just jumped, like, because her feet were coming up, so she was, I don’t know, a bit startled, I guess.

Yes?---Didn’t see it coming.

Yes. And then what happened after that?---The male officer went to do up her belts and I think [the patient] has jumped again because someone was in her space. And then that’s when the male officer said, “It’s an offence to hit an officer and he has got his open palm and his her on the left side of the cheek”.

And when you say, “He has got his open palm and hit her on the left side of the cheek”, which palm is – did he use?---His right hand.

…

Okay. And you said just a moment ago that you saw the male officer, with his open palm, hit the left side of [the patient's] face. Can you describe that motion in a little bit more detail?---Kind of happened quickly, but it was – she has jolted and then he has moved his hand up to the side of her face.

Okay. What sort of force would you say was used?---Not like a – it wasn’t like a big hit, like, just like a – firm, I guess.

And did you – in terms of what you could see of [the Patient's] face, did it leave any marks or could you see any - - -?---No.

Okay. And did it make a sound?---A slight sound, yeah.

Okay. And did the male officer – sorry, I think you said this before, but if you could just repeat it again, what did the male officer say at this point in time?---“It is an offence to hit an ambulance officer” or something along those lines. I can’t quite remember word for word, now.

Okay. And did he say that before or after he hit the patient?---After.

…

  1. [143]
    Ms Masih's evidence was that when Mr Loveridge said the words "These girls may not defend themselves, but I will", he delivered it in a stern and clear voice. With respect to that statement being made, Ms Masih stated:[117]

– I also felt was confusing, because [the patient] wouldn't have been able to comprehend a statement like that, given her dementia.

…

  1. [144]
    Ms Masih's positioning at that time of the incident was dealt with in the evidence as follows:[118]

…

Where were you?---I was behind the male officer, but kind of, like, he was more to my right, but behind.

Can you – it’s really difficult, I know, when you’re just trying to use words and none of us have been in that room and weren’t there on that day, but can you just describe where you were positioned at this time that [the patient] was guided down onto the stretcher? Can you describe your position relative to the position of the stretcher?---Yeah. So the stretcher was still laying – like, it’s in parallel in front of the nurses’ station.

Yes?---[the patient] was being guided onto the stretcher in front of me. The male officer was guiding [the patient] and then I was behind him, maybe about a metre and a half or more behind.

…

  1. [145]
    Accordingly, Ms Masih's evidence is that she was standing about 1 to 1.5 meters behind Mr Loveridge and that she was diagonally looking at the side of the patient's face. From this position, Ms Masih could not see the patient's hands as they were obscured by Mr Loveridge.
  1. [146]
    After Mr Loveridge and Ms Baxter left with the patient, Ms Masih stated that she turned around to the other staff members and said "Did anyone else just see that? Like, we need to do something".[119]
  1. [147]
    Ms Masih said that Mr Bainbrigge then left the room. Her evidence was that she then went to see Ms Provenzano in her office and when she got there, Mr Bainbrigge was already there.
  1. [148]
    Ms Masih was asked what occurred in Ms Provenzano's office and responded as follows:[120]

---We kind of bombarded her, but then she – I had to go back to the floor, so then she came in shortly after with a form for me to fill out.

…

  1. [149]
    Ms Masih said she completed the written statement in the nurse's station and that no one was present with her as she wrote it. Ms Masih then handed the statement to Ms Provenzano during her break at 7.00pm.
  1. [150]
    Ms Masih's written statement is in the following terms:

Paramedics arrived and resident refused to co-operate with staff or paramedics. The male paramedic stated "that these girls may not defend themselves but I will" as he forcibly walked the resident to the stretcher. Paramedic sat resident down continuing to verbally antagonise (sic) resident. Resident looked frightened when she then put her hands up to push the paramedic out of her space, he then grabbed the residents face and hit her on the left side of the face with an open hand stating again "these girls may not defend themselves But I will." Before strapping her in tightly with the seat belts.

…

  1. [151]
    Ms Masih was cross-examined regarding inconsistencies between her statement and her later evidence. One of the matters that Ms Masih was cross-examined about was whether the strike had occurred in one motion or two motions and the timing as to when the patient was strapped into the seatbelt. With respect to the motion of the strike, Ms Masih was unable to definitively provide a response and deferred to her statement as being more likely to be correct on the basis that "so this would probably be more direct than my memory from October and two years later".
  1. [152]
    With respect to the timing of strapping the patient into the stretcher, Ms Masih said she assumes her statement is right because it has been two years.[121] I consider Ms Masih's concessions in this regard to be appropriate and I accept her written statement to be accurate to the extent of any inconsistencies with her later evidence.
  1. [153]
    Following Ms Masih's participation in the record of interview, Ms Brightwell emailed her and put Mr Loveridge's alternative version of events that he was not striking the patient but rather reaching up to grab the seatbelt. As noted further below, Ms Masih did not accept that she may have been mistaken in what she saw, she also maintained this position under cross-examination.

Ms Bainbrigge's evidence

  1. [154]
    On 11 June 2019, Mr Bainbrigge was employed by Opal Varsity Rise as a Lifestyle Officer in the Aberdeen Unit.
  1. [155]
    Mr Bainbrigge's evidence was that he was at the computer in the nurse's station when he heard talking outside. The evidence was that he could not see what was happening in the common room from this position. Relevantly, Mr Bainbrigge heard a male voice loudly say, "if you hit me, I will hit you back unlike the other female worker with me".
  1. [156]
    Mr Bainbrigge said upon hearing those words he walked outside the nurses station as it "was very strange". He saw a number of his colleagues, Mr Loveridge, Ms Baxter and the patient.
  1. [157]
    He said he stood toward the head of the stretcher.[122] Mr Bainbrigge was able to observe the patient as she was lying on the stretcher that was reclined to a 45 degree angle. He described himself as being between one to three feet away from the stretcher and that he was able to see the patient's head, face and body. He stated that he was "pretty much standing over her face". He was also able to observe Mr Loveridge as he was standing next to him.
  1. [158]
    It was from this position that Mr Bainbrigge says that he saw the following as described in his record of interview:

…everybody was trying to get her to sit down on the bed and then as, and by bed I mean the wheelie bed thing and then as she sat down on it then they had to get her legs up so they went to do that and then the male paramedic went to put the seatbelt thing on to, I think it's a restraint over her arms and she punched him, her, [the patient] punched the male paramedic worker and then the paramedic worker, the male one he grabbed his hand in a, like you grab on a cup and he slammed it into her face, below her jaw, just like this.

…

  1. [159]
    Once Mr Loveridge, Ms Baxter and the patient left the wing, Mr Bainbrigge's evidence was that Ms Masih said something along the lines of "are we going to talk about the fact that he just hit her".[123] Mr Bainbrigge's responded that he did see it and that he would tell Ms Provenzano "right now".[124]
  1. [160]
    Mr Bainbrigge states that he advised Ms Provenzano of the incident and then he and Ms Provenzano ran to the ambulance bay to attempt to stop the ambulance from taking the patient but it had already left.
  1. [161]
    Mr Bainbrigge's evidence is that approximately 10 to 20 minutes after the incident he completed a written witness statement. His evidence is that he completed the statement in Ms Provenzano's office at the end of his shift at approximately 7.00pm.
  1. [162]
    Mr Bainbrigge's written witness statement is in the following terms:

[The patient] was being picked up by an ambulance and the male paramedic said to [the patient] "If you hit me, I will hit you back, unlike the other female workers with me". He also said in the same sentence "I will defend myself'. Then [the patient] was seated on the ambulance bed and punched the male paramedic. Then the male paramedic grabbed [the Patient] on the face, and slapped her on the face. He also said something, I can't remember what exactly, something along the lines of "I told you not to hit me". Then [the patient] was restraind (sic) on the bed as per usual - then taken to hospital as some other of my fellow employee's and I just watched - just stunned of what had just happened.

…

  1. [163]
    In his evidence before the Commission, Mr Bainbrigge was asked about the mechanism of the strike. His evidence was as follows:[125]

Can you, doing the best you can in words, can you describe what that gesture was?---Yep. So, gesture, it's a - it's a cup hand. So, if you're holding a glass of water with no handle, and you were just to hold it, it's just a cup shape - shape, so like you're doing a C with your hand.

Yes?---Yeah.

And what did he do with that C-shaped hand?---He quite violently shoved it or smashed it into the patient's mouth area, around her chin.

And so that was the first motion, and what was the second motion that you described, following that?---The second motion was just a little slap on the cheek.

And again, just focusing on that first motion, the one with the C-shaped hand that connects with the patient's face, how would you describe that in terms of force?---lt was solid, like it was a - it was a pretty big hit, like it-  it could have knocked her out if he did it hard enough.

Did it?---No. She was - she was stunned. She didn't - she obviously didn't think he would - would do anything like that, and I don't know if she heard him or not, because she's very deaf, and she just looked - just shocked, just like, you know, I'll do anything you say now, kind of thing.

Did it make a noise?---Yes. Absolutely.

How would you describe that?---Just a thud, big thud, and the slap was - the slap was just a little slap, but you could hear it, but the slap was just - wouldn't have done any damage, the slap, but the cupping of the hand could've definitely done damage.

…

  1. [164]
    Mr Loveridge's alternative version of events was put to Mr Bainbrigge in email correspondence from Ms Brightwell. Mr Bainbrigge's response to that email appears in these reasons further below. It is enough to note that he does not accept Mr Bainbrigge's alternative version of events and maintained his account of what occurred.
  1. [165]
    Mr Bainbrigge's position is consistent with his evidence that he saw Mr Loveridge lean across the patient toward the seatbelt and then the patient struck Mr Loveridge. Mr Bainbrigge's evidence is that Mr Loveridge then struck the patient and she was subsequently strapped onto the stretcher.

Ms Wood's evidence

  1. [166]
    Ms Wood is an Enrolled Nurse and was placed at Opal Varsity Rise through an agency on 11 June 2019.
  1. [167]
    Ms Wood was not interviewed during the investigation process and gave her evidence to the Commission over two years after the event.
  1. [168]
    Ms Wood was present during the incident and provided a written witness statement completed on 11 June 2019. Relevantly, Ms Wood states that she witnessed Mr Loveridge strike the patient.
  1. [169]
    Ms Wood's written statement was in the following terms:[126]

This evening I saw a male ambulance officer grab resident [the patient] by the chin and open handed lightly slap her face. He was accusing her of assaulting him. The male office (sic) was quite rough with [the patient] when attaching the seat belt over her.

…

  1. [170]
    Ms Wood gave evidence that she was either at the foot or to the side of the stretcher. She said at the time she was beside Mr Loveridge and "I could touch him".[127]
  1. [171]
    Ms Wood's further evidence[128] was that she could recall seeing the patient and that there was no obstruction of her view to the patient. Ms Woods stated that she could "see everything".
  1. [172]
    In her evidence, Ms Wood described the incident in terms largely consistent with her statement as follows:[129]

---I saw an ambulance officer assisting a lady onto the ambulance trolley and she was going to hospital because she was a danger to herself and others. She was a dementia resident and was being aggressive, so she was resistive with going onto the ambulance trolley and the ambulance officer, once she was placed on the trolley and he was putting her seatbelt on quite roughly, she was lashing out and he grabbed her by her chin and was slapping her on her face, accusing her of assaulting him, and yeah, was just accusing and – slapping her on the face, accusing her of assaulting him.

…

  1. [173]
    Under cross-examination Ms Wood became less certain that she completed the written statement in the nurse's station. The following relevant exchange occurred:

You said something to the effect that you filled it out at a desk; do you recall that?---Nurses’ station.

Okay. So were you – again, were you leaning on - - -?---Or did I?

- - - the nurses’ station from the lounge room looking in?---I don’t recall. I just know I was filling something out at that nurses’ station.

Okay. And you mentioned that there were other staff members filling out theirs at the same time?---What I recall. I’m not sure.

Do you remember how many of them there were?---No.

You don’t remember any of their names?---No.

…

  1. [174]
    Similarly, Ms Wood had no specific recollection of providing her statement to Ms Provenzano.[130]
  1. [175]
    Generally, Ms Wood's evidence surrounding matters peripheral to the incident were less certain than her evidence with respect to the incident. Ms Wood's memory of the incident was no doubt assisted by her written statement. I consider this to be consistent with the effect of the passage of time since the incident.

Ms Church – not called as a witness

  1. [176]
    Neither party called Ms Church as a witness in the proceeding.  Ms Church was interviewed by Ms Brightwell during the Investigation.  The Respondent endeavoured to contact her for the purpose of speaking with her as a potential witness and this is set out in the affidavit of Cassandra Selby sworn on 27 October 2021.[131] It is clear that Ms Church was of the view that she would be of little assistance to the proceedings.
  1. [177]
    The Respondent further submitted that Ms Church is independent of the QAS. It submitted that if Mr Loveridge considered there was genuine need to further test the evidence of Ms Church, it was open to him to call her however he declined to do so.[132] I will deal with this further below.

Ms Baxter's evidence

  1. [178]
    As noted elsewhere, Ms Baxter was a junior paramedic who had sought for her supervision period to be extended.  Mr Loveridge was her supervisor, and they were on shift together the night of 11 June 2019.
  1. [179]
    Prior to 16 December 2019, Ms Baxter had supported Mr Loveridge’s version of events in so far as she stated that she did not see Mr Loveridge strike the patient.  Ms Baxter maintained this position on the evening of the incident when talking to Ms Barnes, in her discussions with Mr Armstrong, and during the recorded interview with Ms Brightwell.
  1. [180]
    However, Ms Baxter changed her evidence in an email to Ms Brightwell of 16 December 2019 as follows:[133]

NOTE:  When I was doing up the lower leg seatbelts ACP Loveridge was leaning over the pt attempting to do up her seatbelts, the patient became very agitated and aggressive attempting to strike him in the face and yelling at him.  As this was happening I walked quickly around to the head of the stretcher to get the shoulder seatbelts, and as I walked around I heard officer Loveridge raise his voice at her to tell her to stop, and she hit him in the face.  ACP Loveridge raised his right hand with an open palm, it appeared as though he was going to slap the patient on the left cheek.  His hand slowed as he got closer to her cheek - from what I can remember I would describe the connection as a light/medium tap, with minimal force behind the motion.  I don't believe the force behind the motion was enough to hurt the patient, or leave any marks.  The patient's face appeared surprised.  I could tell that ACP Loveridge immediately regretted his actions, and at hospital as after we handed over the patient when (sic) were about to leave he stated that he regretted his actions that night and no more was mentioned of the incident.

  1. [181]
    Following concerns raised by Mr Loveridge, Mr Draper emailed Ms Baxter and enquired of her as to why she had changed her version of events.  Her response was to the effect that she recognised that she was wrong to withhold the truth and she should not have done so.
  1. [182]
    It is clear from the disciplinary finding decision that Mr Emery accepted the evidence of Ms Baxter, as altered by her, that she did witness Mr Loveridge strike the patient.
  1. [183]
    Mr Emery gave his evidence with respect to his consideration of Ms Baxter's evidence as follows[134]:

Yeah, I think that – something that I did need to turn my mind to obviously, and reading her original statement I – I took that she was sitting on the fence – sort of colloquial term, but she was never – she –she said that she didn’t really see anything. She didn’t have a strong view either way. I understand that she later made another statement that said that she did in fact see the slap on the face. She described it as probably not as vigorous a slap as some of the other, but I think that’s, you know, it’s just a matter of a personal perspective, I guess. I think – I do – I recognise and understand the difficulty she may have been  in, and I understand that she described that she was worried about potential, you know, reprisals and retributions in the workplace. She’d heard that from a friend that had been involved. She was early in her graduate period and, you know, she was worried to come forward with the truth, but that that weighed on her so heavily that at a point in time she decided to come forward with the truth.

…

  1. [184]
    I consider that on the evidence before Mr Emery it was open for him to accept one of Ms Baxter's versions of events as being accurate.  Mr Emery provided sound reasoning as to why, on the material before him, he accepted and relied on Ms Baxter's evidence to substantiate the allegation.
  1. [185]
    Before the Commission, Mr Loveridge made a number of further contentions about the reliability of Ms Baxter's evidence.  Some of these matters were not before Mr Emery.  Ultimately, however, I have formed a view that on the evidence before the Commission, Ms Baxter was an unreliable witness and little weight should be placed upon the evidence she gave to the Commission and throughout the matter.
  1. [186]
    Firstly, Ms Baxter's demeanour in giving her evidence is a relevant consideration.  Ms Baxter did not present as a persuasive witness who had a ready recall of the matter. Her evidence, particularly on the first day of giving her evidence, was marred by long pauses and indirect responses to questions that had been put to her. Ms Baxter often appeared confused by the matters that were being asked of her and easily fatigued during the giving of her evidence. No explanation was provided by either Ms Baxter or the QAS to explain Ms Baxter's presentation during her evidence.
  1. [187]
    Further, in relying on her altered version of events it was put to Ms Baxter in cross-examination that she must have not told the truth to Ms Barnes, to Mr Armstrong and to Ms Brightwell. These propositions were each accepted by Ms Baxter.
  1. [188]
    During her evidence before the Commission, Ms Baxter provided fresh and additional evidence about what she said she saw on the evening of 11 June 2019. She did so by stating that the altered version she had provided on 16 December 2019 was not the "full truth".
  1. [189]
    Ms Baxter then proceeded to provide a differing account of the incident on 11 June 2019 wherein she referred to her version of 16 December 2019 and identified components of it that she stated were not correct. Relevantly, details Ms Baxter amended included those relating to the manner in which she described Mr Loveridge striking the patient[135].
  1. [190]
    Given that Ms Baxter has presented with three significantly different versions of events of the evening of 11 June 2019, it cannot be determined with confidence where the truth, if any, lies in her evidence. Consequently, I am not able to rely on any evidence given by Ms Baxter and I will place no weight on her evidence in my consideration of the matter.

Mr Emery's evidence

  1. [191]
    Mr Emery was the decision maker in terms of the disciplinary finding decision which substantiated the allegation and the disciplinary penalty decision which determined to terminate Mr Loveridge's employment.
  1. [192]
    Mr Emery also determined to suspend Mr Loveridge on pay on 8 September 2020.
  1. [193]
    Mr Emery has held the position as Deputy Commissioner of the QAS since 2012. Mr Emery holds a level three delegation which authorises him to make disciplinary penalty decisions up to termination.
  1. [194]
    Mr Emery gave evidence that he had experience in being involved with between 20 to 30 other such discplinary matters.
  1. [195]
    With respect to this matter, Mr Emery considered the allegation made to be "most serious in nature".[136]
  1. [196]
    Mr Emery received a referral of Mr Loveridge's matter from Mr Draper on 31 August 2020. As noted above, he secured approximately 600 pages of documents comprising of the investigation reports and attachments, the First Show Cause and Supplementary Show Cause letters and Mr Loveridge's respective responses and Ms Brightwell's emails to Ms Baxter, Ms Masih and Mr Bainbrigge and their respective responses.
  1. [197]
    Mr Emery said he did not speak to the referring officer Mr Draper, as it is not his practice to consult with the referring officer or to seek their opinion. He explained his reasoning for this as follows:[137]

I like to make those decisions on the basis of the information that’s provided, and any other additional information that comes through as part of the ongoing show cause process.

…

  1. [198]
    Mr Emery described the process he undertakes in disciplinary matters which includes:
  1. (a)
    talking to the employee relations case manager to work through the documents;
  1. (b)
    he then allocates time to review the documents; and
  1. (c)
    he then considers the material in multiple phases.
  1. [199]
    Mr Emery referred to his outlook calendar, a printout of which was tendered into evidence.[138]
  1. [200]
    I am satisfied on the material that Mr Emery put aside an appropriate amount of time to fully and properly consider the material in this matter.
  1. [201]
    Relevantly, Mr Emery detailed that on 4 September 2020, he had read the show cause material and turned his mind as to whether Mr Loveridge should be suspended.
  1. [202]
    As noted above, Mr Emery determined that Mr Loveridge should be suspended which Mr Loveridge was notified of on 8 September 2020.
  1. [203]
    On Mr Emery's evidence, he further considered the material and put aside a block of time on 15 September 2020.
  1. [204]
    There is also evidence that Mr Emery requested Ms Brightwell to send email correspondence to Ms Baxter, Ms Masih and Mr Bainbrigge and that their respective responses were received by about no later than 2 October 2020.
  1. [205]
    There is evidence that Mr Emery had determined to request Mr Loveridge to show cause from about 21 September 2020, but the show cause notice was not issued until 6 October 2020.
  1. [206]
    I am satisfied that Mr Emery was in receipt of all the relevant information prior to the show cause notice being issued.
  1. [207]
    Mr Emery's evidence was that he considered Mr Loveridge's show cause response in some detail. Relevantly, his evidence was that based on Mr Loveridge's responses to the show cause, Mr Emery determined not to substantiate allegations one, two, three and five. I am satisfied that this supports a conclusion that Mr Emery exercised an independent mind to the allegations and considered all the evidence including Mr Loveridge's responses.
  1. [208]
    In Mr Emery's evidence, he provided his reasoning as to why he substantiated allegation one as follows:[139]

Yes. So, in broad terms, the evidence of Masih, Bainbrigge and Baxter, as I said earlier, was – sorry – was consistent in terms of their recollection from the – the demeanour that they describe at the original presentation of Mr Loveridge and his partner at the – at the nursing home, their initial interaction with Ms Masih prior to the formal handover, some commentary around, you know, potentially – I’m paraphrasing but, you know, the waste of time – I call it that and I know that’s not the real words but you know.

I understand?---Leading to Mr Bainbrigge, you know, overhearing from a distance from another room what he described as a heightened and raised voices around Mr Loveridge’s first interactions with the patient, those – what I call those warning shots around if you hit me I’ll hit you back – words to that effect, I guess. Again, if these – these women won’t defend themselves but I will. So that raised demeanour and attitude towards the – the dementia patient.

Yes?---Then the – the relevant consistent evidence between Masih, Bainbrigge and Baxter about what then occurred, and I recognise that in the evidence there’s some

differences about whether Mr Loveridge held the lady by the shoulders or the arms and the hands and all of those sorts of things, and I get that those are normal things, but I guess the striking of the face leaves a much more indelible print on people’s brains and they get that right or they get that consistent. So in Mr Loveridge’s evidence he continues to deny that that occurred, albeit that three – at least three other witnesses – say they say that - - -

Yes?--- - - - and can, as I said, can recount that consistently. And, again, across – not with Baxter admittedly but with the other two, you know, at the time of the contemporaneous notes, the time of the interview, and much later in October when they were asked to reaffirm their statements, Mr Loveridge I don’t believe ever gave another plausible reason about how that could be misconstrued, and what did put to Masih and Bainbrigge and Baxter they rejected any – any alternate statement. So that’s, in essence, it.

…

  1. [209]
    In coming to this conclusion, Mr Emery was questioned as to whether he had considered the inherent improbability of a senior paramedic with a relatively unblemished record striking an elderly dementia patient. Mr Emery said he did and that was the reason he agreed to meet with Mr Loveridge in person. Relevantly, Mr Emery's evidence was as follows:[140]

…He asked to meet with me to present his show cause, and I went into that meeting with an open mind to understand how – what could possibly have gone wrong that something so aberrant would occur in a nursing home with an 84-year-old lady, and I was not – I was not persuaded from the evidence that I had already read.

…

  1. [210]
    Mr Emery's evidence was that he met with Mr Loveridge in order for Mr Loveridge to provide a verbal show cause response. Mr Emery's evidence as to his assessment of Mr Loveridge in the meeting is as follows:[141]

---I – I remember thinking that Mr Loveridge was a very well presented, softly spoken, quite professional. He came to the interview in his uniform. He was well presented and, as I say, he spoke to me about his – some personal circumstances in his life. He was – seemed to be a, you know, a genuine conversation. That said, at the matters at hand he wasn’t able to provide any alternate information that was more compelling than the three witnesses – the other three eyewitnesses that saw the physical assault of [the patient].

…

  1. [211]
    Mr Loveridge provided Mr Emery with a written show cause response following the meeting. Mr Emery gave evidence that he considered Mr Loveridge's response and determined that dismissal was the appropriate penalty in the circumstances of this matter. He was asked his reasoning with respect to the decision and his evidence was as follows:[142]

Yes. So I guess at the show cause proc – stage I had communicated to Mr Loveridge why I thought the evidence was compelling, and he was provided an opportunity to – to respond. In terms of the versions of events, I had not changed my view that Bainbrigge, Masih and Baxter’s evidence of what had occurred on the day, being the – the assault of [the patient's] slap on the face. I believe that is the – what happened on the day. I also in the show cause process and in reading the show cause process took the time to understand what other options were available to me. The gravity of the decision to terminate Mr Loveridge’s employment, I – I read in his show cause and in some personal discussions at our – at our one-on-one meeting, or at our meeting I should say, about the impacts that it would have on his career, and I took those things into account as well, and they, of course, weigh heavily on me as a decision maker. That said, the circumstances that Mr Loveridge found himself in on that day that led to him slapping an elderly woman are not uncommon. I get that the context of that environment was a little bit aggressive, and, you know, but it’s not uncommon and something that a paramedic is trained to and should be able to deal with at any given time. There are far more volatile circumstances that occur in our workplace as well that should not result in the assaulting of a patient either. I believe we’ve given Mr Loveridge the requisite training to deal with that matter. I believe that – sorry – I believe that it is true that it is an autonomous role, that paramedics do work in a largely uncontrolled environment, so that set of circumstances can happen on any shift at any day, and, in fact, do in Queensland, and we don’t have a model of service that would put me in a position to supervise Mr Loveridge to ensure those things don’t occur again. As I said, he is largely autonomous. Any of those frontline operational roles can result in that environment, and that’s not the behaviour that we accept in the organisation. To assault a patient in any way, shape or form is not acceptable. In terms of alternate employment, we don’t really – you know, Mr Loveridge’s skills as an advanced care paramedic, that is, you know most of our workforce is frontline. We don’t have back office administrative roles available, definitely not in long term. We can accommodate people from – for short-term periods, but not – not to the extent for the rest of his career. So with all of the options in front of me, with the fact that Mr Loveridge still hadn’t admitted and accepted the circumstances of the day, and our inability to supervise that moving forward, and then ultimately the reputational risk that goes along with an organisation where we are trusted to go into people’s homes to treat their 84-year-old mothers and grandmothers and such, that’s – that’s not a – that’s – that’s not a reputation the ambulance service wants, and I think one that would potentially discourage people to call in their time of need. So with everything that was in front of me I didn’t see any other option but to terminate the employment of Mr Loveridge.

…

  1. [212]
    Mr Emery was also questioned with respect to the issue of trust and his response was as follows:[143]

---Yeah. Well, there is a trust issue for us. As I say, we – we do – we trust that our staff are trained well enough to go out and deliver the services that we require them to do. We give – we allow them to practice autonomously because of the environment they work in, and we have to be able to trust that they will follow those things out. And there is a link, then, I think, to the reputation of an ambulance service that says we need to be able to entrust them to take good care of elderly citizens in nursing homes and – at 3 o’clock in the morning in their direst time, and that’s something that we – we just cannot tolerate.

…

  1. [213]
    Mr Emery was also asked whether he considered alternative penalties including training and counselling. His evidence was:[144]

---We provided opportunities for counselling throughout the process. I think the train – Mr Loveridge states in his evidence that he has had the training, he understands the training. I don’t know what level of training we can undertake that would then ultimately stop a decision to slap somebody. We can train people how to manage those situations and how to deal with those things, but a decision to actually take a hand to a patient, I don’t know how we train that out of somebody.

…

  1. [214]
    Mr Loveridge contends that Mr Emery was careless in his decision making. I will consider these matters further below.

Mr Loveridge's contentions as to why the Commission should not be reasonably satisfied that he engaged in the conduct.

  1. [215]
    During the course of the hearing Mr Loveridge has maintained a broad ranging criticism of the investigation process itself, including the evidence gathered during the investigation process, the reliability of the evidence of the workers at Opal Varsity Rise who gave evidence that they witnessed Mr Loveridge strike the patient, the show cause process and the decision ultimately made by Mr Emery.
  1. [216]
    In all, Mr Loveridge relies on a number of contentions to argue that there was no reasonable basis to support the substantiation of the allegation. Accordingly, it is necessary for me to address those contentions.
  1. [217]
    A number of the contentions relate to alleged errors in the investigation process and the conclusions drawn by the investigator. These contentions can only be relevant if it can be established that not only did such errors result in the process being either procedurally or substantively unfair (or both), but that such an error infected the reasoning of Mr Emery as the decision maker to the extent that he could not have been reasonably satisfied that Mr Loveridge was guilty of the conduct.
  1. [218]
    It is convenient to deal with Mr Loveridge's contentions under the following headings:
  1. (a)
    The Investigation miscarried and the evidence was contaminated; and
  1. (b)
    The QAS's decision makers were led into error by the Investigation Report and were careless.

The investigation miscarried and the evidence was contaminated

  1. [219]
    Mr Loveridge contends that:
  1. (a)
    In making his preliminary inquiries, Mr Young spoke with witnesses together and failed to follow up important evidence;
  1. (b)
    Ms Brightwell's investigation was fundamentally deficient, in ways large and small, and the outcome apparently pre-conceived; and
  1. (c)
    Ms Brightwell contaminated the witness evidence in the process of undertaking her investigation.

Mr Young's preliminary inquiries

  1. [220]
    Mr Loveridge submits that in making his preliminary inquiries, Mr Young spoke with witnesses together and "failed" to follow up important evidence. In particular, Mr Loveridge submits that Mr Young "hopelessly ran together" the evidence provided by Ms Masih and Ms Church, when he sent the email providing a summary of his attendance at Opal Varsity Rise on the night of 11 June 2019. In support of his position, Mr Loveridge refers to the evidence provided by Mr Young during cross-examination, where he was unable to recall which one of the two witnesses gave “evidence” to him regarding the incident on 11 June 2019. 
  1. [221]
    In making out this submission, Mr Loveridge must establish that Mr Young's preliminary inquiries at Opal Varsity Rise on the night of the incident had an adverse influence or impact on Mr Emery as the decision maker. Mr Loveridge does not point to any such influence or impact. Relevantly, Mr Young attended on Opal Varsity Rise and collected the written statements that had been prepared earlier in the evening by Ms Masih and Mr Bainbrigge and he also spoke to Ms Provenzano, Ms Masih and Ms Church whilst he was undertaking such preliminary inquiries. At the time that Mr Young spoke to Ms Provenzano, Ms Masih and Ms Church, Ms Masih had already executed her written statement. Accordingly, I do not accept that the conversation could have contaminated Ms Masih's written version of events.
  1. [222]
    Mr Loveridge also notes in his submissions that Mr Young "failed" to obtain a further written statement from Ms Church. Mr Loveridge contends that the evidence of Ms Church is important because while she witnessed the incident, she did not "see" Mr Loveridge strike the patient as alleged.   Relevantly, however, Mr Young was not, at that point, or at all, charged with the responsibility of undertaking an investigation. He was, as is noted above, undertaking preliminary inquiries about the complaint. 
  1. [223]
    With respect to Ms Church's statement, there is no direct evidence that she prepared a written statement on the evening of 11 June 2019.  To the extent that there was some confusion in the evidence as to whether it was Ms Church who had prepared and delivered a statement to Ms Provenzano's office on the evening of the incident, I am satisfied, having heard the evidence of Ms Wood, that it was Ms Wood, rather than Ms Church, who had produced the statement.
  1. [224]
    In any event, when it was ultimately determined to investigate the allegation, Ms Church was interviewed during the course of the investigation by Ms Brightwell. Ms Church's version of events as recorded in her interview was included in the material put to Mr Loveridge during the show cause process.
  1. [225]
    Consequently, I do not consider that in undertaking his preliminary inquiries Mr Young, in the terms as alleged by Mr Loveridge, caused the investigation to miscarry or that he contaminated the evidence.

Investigation deficient

  1. [226]
    Mr Loveridge also contends that Ms Brightwell’s investigation was fundamentally deficient and the outcome preconceived.
  1. [227]
    Relevantly, it should be noted that Ms Brightwell was not called as a witness in the proceeding. Consequently, the Investigation Report was admitted into evidence as original evidence only, and not as proof of the truth of its contents. In reliance on the rule in Jones v Dunkel[145], Mr Loveridge submitted that the proper consequence of QAS's forensic decision not to call Ms Brightwell as a witness, or to otherwise challenge Mr Loveridge's contentions regarding the investigation is that the Commission can accept those contentions as correct and draw any relevant adverse inferences with greater confidence.
  1. [228]
    The QAS contended in response, however, that Mr Emery did not rely on the findings made by Ms Brightwell in his determination and rather, relied on the evidence attached to the report to determine that the allegation was substantiated.
  1. [229]
    I consider that it is not enough for Mr Loveridge to contend an error without further establishing that such an error infected Mr Emery’s determination of the allegation.
  1. [230]
    Relevantly, Mr Loveridge contends that Ms Brightwell failed to comply with the Terms of Reference, the Workplace Investigations Human Resource Procedure and Workplace Investigations - A guide for investigators, and submits that the Commission ought infer this decreased the fairness and/or reliability of the Investigation and the Investigation Report.[146] 
  1. [231]
    It appears, in support of this contention, Mr Loveridge points to an alleged failure of the investigator to identify and interview all of the potential witnesses to the incident and that as a consequence did not comply with a requirement in the Terms of Reference to "seek statements from … any potential witness identified based on the allegations".
  1. [232]
    On the evidence before the Commission, it is clear that Ms Wood, an agency nurse, was not interviewed during the investigation. It appears that while Ms Wood provided a statement, Ms Provenzano did not subsequently provide a copy of that statement to the QAS after she received it. It was Ms Provenzano's evidence that Ms Wood had left it under her office door after Ms Provenzano had left work on 11 June 2019.  Consequently, Ms Wood's statement that she wrote following the incident on 11 June 2019 did not form part of the investigation and Ms Wood was not interviewed by the Investigator.
  1. [233]
    Ms Wood's written statement, as noted above, did form part of the evidence before the Commission and she was cross-examined with respect to it.  Relevantly Ms Wood's statement was to the effect that she witnessed Mr Loveridge strike the patient. Ms Wood provided direct evidence with respect to what she witnessed when the patient was on the stretcher which was largely consistent with her evidence before the Commission. Her evidence goes against the evidence of Mr Loveridge, and to the extent of the terms of the allegation is largely consistent with the evidence of Ms Masih and Mr Bainbrigge insofar as they each saw Mr Loveridge strike the patient.
  1. [234]
    Whilst I accept that Ms Wood's statement should have been followed up and obtained and a request made that Ms Wood participate in an interview. I do not consider the failure to take these steps resulted in an error in Mr Emery's findings. Mr Emery relied on direct evidence of witnesses in forming his view that the allegation was substantiated. Ms Wood's evidence was consistent with that finding.
  1. [235]
    Mr Loveridge further contends that the investigator knew that Ms Church prepared a contemporaneous statement in respect of the incident and failed to obtain a copy of it.  As noted above, there was some confusion in the evidence emanating from the evidence of Mr Young, that he understood that the statement that was in fact provided to Ms Provenzano by Ms Wood was to be provided by Ms Church.  As noted above, I have found that the contemporaneous statement was that of Ms Woods rather than Ms Church and I have dealt with this issue above.
  1. [236]
    Mr Loveridge also contends that Ms Brightwell failed to provide Mr Loveridge with a drawing of the scene prepared by Ms Church in her interview with Ms Brightwell.
  1. [237]
    During her interview, Ms Church provided a drawing of her memory of where people were positioned in the common room. The QAS accepts that Mr Loveridge was not provided with a copy of the drawing. The drawing was not attached to the investigation report nor was it referred to in the body of the investigation report.
  1. [238]
    Relevantly, the drawing was not provided to Mr Emery and did not form part of the evidence Mr Emery relied on to find that the allegation was substantiated. Whilst I accept that all relevant evidence should have been put to Mr Loveridge and provided to Mr Emery, there is no evidence before me as to why Ms Church's drawing is a key and relevant document and why the failure to provide Ms Church's drawing may have resulted in any unfairness that then infected Mr Emery's decision.
  1. [239]
    There are no further particulars before me that reasonably identifies the error that resulted from the failure to provide Ms Church's drawing.
  1. [240]
    A further contention is that the investigator failed to ask Ms Baxter whether she made a contemporaneous note with respect to the incident.  This contention arises from the assumption made by Mr Loveridge that Ms Baxter did in fact make a contemporaneous note of the incident. This assumption is derived from the evidence of Ms Bennett who indicated that when she spoke to Ms Baxter, she suggested that Ms Baxter write down what she remembered of the incident and the evidence of Mr Loveridge who also suggested to Ms Baxter that she write down what happened.
  1. [241]
    Ms Baxter prepared an affidavit that was tendered into evidence[147] in response to a notice of non-party disclosure served by Mr Loveridge which sought, in summary, any document created by Ms Baxter on or around 12 June 2019 in relation to events Ms Baxter witnessed on 11 June 2019. Ms Baxter produced a sworn affidavit stating she did not make a contemporaneous note.
  1. [242]
    Ms Baxter was cross-examined with respect to the existence of any contemporaneous note.  Ms Baxter maintained that she did not prepare a contemporaneous note. Given my previous conclusions with respect to the reliability of Ms Baxter's evidence, I place no weight on her response. However, I am not satisfied based on the assumption made by Mr Loveridge that Ms Baxter produced a contemporaneous note.
  1. [243]
    Mr Loveridge contends that on 3 December 2019, Mr Brightwell sent an email to Ms Baxter wherein she incorrectly and without a reasonable basis stated that Mr Loveridge had made a number of adverse comments about Ms Baxter.
  1. [244]
    The alleged adverse comments were put to Ms Baxter during cross-examination.  They included, for instance, an allegation that:

"1. ACP Loveridge has stated that you wrote the eARF on his iPad. Do you have any comment to make about that?"

  1. [245]
    Under cross-examination Ms Baxter indicated that she did view that comment to be adverse as it indicated that Ms Baxter wrote the eARF on Mr Loveridge's iPad in circumstances where she was not the treating officer. 
  1. [246]
    I consider that the comments had the potential to be adverse to Ms Baxter as it suggests that she was the author of the eARF rather than Mr Loveridge.  I consider it was appropriate in those circumstances for Ms Brightwell to put those matters to Ms Baxter to allow her an opportunity to respond. I do not consider putting the potentially adverse comments to Ms Baxter and describing them as such whilst giving her an opportunity to respond was unfair.
  1. [247]
    Mr Loveridge contends that following receipt of Ms Baxter's altered version of events from 16 December 2019, Ms Brightwell did not take reasonable steps to deal with the risk that Ms Baxter's evidence was not reliable or accurate. I have dealt with the reliability of Ms Baxter's evidence elsewhere.
  1. [248]
    However, to the extent that this matter was not dealt with in the investigation this was sought to be remedied by Mr Draper. The fact that Mr Draper took steps to remedy this concern prior to the completion of the show cause process was acknowledged by Mr Loveridge in his submissions. Mr Loveridge's contention again criticises Ms Brightwell in her investigation in circumstances where steps were subsequently taken to address his concern during the show cause process and prior to the matter being determined by Mr Emery. Consequently, I do not consider that any unfairness arises.
  1. [249]
    Mr Loveridge also contends that Ms Brightwell failed to record the entirety of her interview with Ms Baxter.  It appears that during Ms Baxter's interview the recording suffered some sort of interruption. It appears that Ms Baxter identified that the recording had stopped and as a result Ms Brightwell summarised the matters that she had put to Ms Baxter and Ms Baxter confirmed her response. 
  1. [250]
    It is clear on the material that the interview was recorded but that the recording was interrupted by some means (or perhaps not turned on again after a brief adjournment).  As soon as that was identified by Ms Baxter it was remedied and a summary was provided as to what had been discussed. Ms Baxter confirmed the accuracy of the summary. I am satisfied on the material that the interruption to the recording was unintentional. Mr Loveridge does not contend that matters of substance were not recorded. Accordingly, I do not consider that any unfairness flows from this contention.

Contamination of evidence

  1. [251]
    Mr Loveridge contends that the evidence of the witnesses was contaminated by Ms Brightwell revealing the evidence of other witnesses. 
  1. [252]
    Relevantly, Mr Loveridge contends that Ms Brightwell showed Ms Masih a drawing of the scene by Mr Bainbrigge and told Ms Masih what Mr Bainbrigge had said in terms of where he was standing.
  1. [253]
    Relevantly, the interview with Ms Masih commenced with Ms Masih explaining why the ambulance officers had been called to attend to the patient and the interactions that she had with the ambulance officers.  She was then asked for further details about how the patient was placed on the stretcher and what she saw. Ms Masih then gave the information that she witnessed Mr Loveridge strike the patient.  Following this account and a little over half way through the interview, Ms Masih was shown a copy of the diagram drawn by Mr Bainbrigge and was asked whether she agreed with where Mr Bainbrigge has positioned various people on the drawing. Ms Masih then gave her own account of where people were positioned. I am satisfied that Ms Masih's version of events as stated in the interview was not contaminated by the investigation or subsequently by showing Ms Masih Mr Bainbrigge's drawing.
  1. [254]
    Mr Loveridge contends that Ms Brightwell told Ms Baxter evidence that she had been given by Mr Bainbrigge and Ms Masih.  As with Ms Masih, Ms Baxter was invited to provide her account of the incident at first instance. Ms Baxter provided her account and was questioned by Ms Brightwell with respect to it.  Toward the end of the interview Ms Brightwell put Mr Bainbrigge and Ms Masih’s version of events to Ms Baxter and sought her response. Ms Baxter maintained her earlier unaltered version of events, that is, she did not witness Mr Loveridge strike the patient. Consequently, there is no evidence that Ms Baxter's evidence was contaminated by the investigator.
  1. [255]
    Mr Loveridge also contends that Mr Bainbrigge's evidence was contaminated because another witness was present during his interview and they both gave their evidence in the one interview.  Ms Provenzano attended the interview with Mr Bainbrigge as his support person.  Relevantly Ms Provenzano was not a witness during the investigation although she was the one who raised the complaint on behalf of Opal Varsity Rise. 
  1. [256]
    Ms Provenzano did speak during the course of the interview.  Relevantly, Ms Provenzano asked Mr Bainbrigge "Did it make a noise?" when he gave evidence of the slap to the patient. Ms Provenzano also stated that Mr Bainbrigge would not have been able to see what was occurring in the common room from his position at the computer in the nurses station.
  1. [257]
    Ms Provenzano was also asked questions directly about CCTV footage and she gave a description of the patient's wounds and provided information as to the patient’s clinical care. This is information Mr Bainbrigge had no knowledge of as it is related to the management of Opal Varsity Rise and the clinical care of the patient.
  1. [258]
    I am satisfied that it was not the case that Mr Bainbrigge and Ms Provenzano gave their evidence together.  A review of the transcript indicates that Mr Bainbrigge gave his account of the incident and what occurred without any substantial or relevant interruption from Ms Provenzano. Whilst I do not consider it best practice for a support person to ask a question or to provide an opinion as to what could be seen from the nurse's station, I do not consider that Mr Bainbrigge's evidence was contaminated or that his evidence was infected by Ms Provenzano.
  1. [259]
    Mr Loveridge further states that Opal Varsity Rise staff discussed their observations of the Incident immediately afterwards thereby contaminating their evidence and Ms Brightwell took no reasonable steps to manage the risks posed as to the reliability or accuracy of the recollections of those witnesses. 
  1. [260]
    Whilst Ms Masih, Mr Bainbrigge and Ms Wood were each cross-examined with respect to this contention, there was no evidence that these witnesses to the incident had a lengthy or detailed conversation about what occurred and then how such an alleged conversation contaminated the respective witnesses' evidence. On Ms Masih and Mr Bainbrigge's evidence, Mr Bainbrigge almost immediately went to report the matter to Ms Provenzano after confirming to Ms Masih that he had seen the incident. Further, whilst Ms Masih states that she also went to Ms Provenzano's office at the same time as Mr Bainbrigge, her evidence is that they were talking over the top of each other. Mr Bainbrigge and Ms Provenzano do not recall Ms Masih coming to the office at all. On this evidence, I am not satisfied that any meaningful or detailed conversation took place so as to contaminate the evidence of these witnesses. Further, I have also had regard to the written statements that each of Ms Masih, Mr Bainbrigge and Ms Wood prepared on the night of the incident. They each prepared their own version of what occurred by adopting different language and expression.
  1. [261]
    Mr Loveridge further contends that Ms Brightwell put Mr Loveridge's version of events to relevant witnesses in a manner that was leading and unfair. Mr Loveridge submits the way in which Ms Brightwell put Mr Loveridge's version of events[148] as directed by Mr Emery[149] to Ms Baxter,[150] Ms Masih[151] and Mr Bainbrigge[152] was leading and unfair. 
  1. [262]
    Ms Brightwell wrote to Ms Baxter, Ms Masih and Mr Bainbrigge in similar terms as follows:

…

Among other things, ACP Loveridge has provided the following within one of his responses:

I have provided the Investigator with evidence that others may have thought I touched [the patient’s] face when I reached for the seatbelt, this has not been put to the witness as an explanation.

For completeness, the Queensland Ambulance Service (QAS) is putting the above proposition to all witnesses, and we would appreciate your response as to whether or not, you may have been in any way mistaken with respect to your observations as set out in your original statement and during interview with me.

It would be greatly appreciated if you could provide me you response as soon as you are able.

…

  1. [263]
    Ultimately, it was Mr Loveridge who raised as a fairness issue during the show cause process that his version of events had not been put to the witnesses for their response. However, when his position was put to the witnesses, he further contends that it was put in such a way so as to be unfair.
  1. [264]
    The QAS, in the email to the witnesses, placed the witnesses on notice that Mr Loveridge had an explanation for his actions and in doing so, used and adopted the language of Mr Loveridge to provide the explanation. The witnesses were then invited to provide a response and in particular, to consider if they were mistaken in their earlier responses. I consider it was appropriate for Mr Loveridge's explanation to be provided in his terms to the witnesses. I further consider that it was appropriate to ask the witnesses for their response and to directly query as to whether or not they may have been mistaken in their earlier statements. I do not consider, given the language of the email, that it was put in a leading or unfair way.

QAS decision makers were led into error by the Investigation Report

  1. [265]
    Mr Loveridge contends that the investigation report contained statements and conclusion about the evidence that were incorrect. Relevantly, he submitted as follows:
  1. The Investigation Report stated, incorrectly and contrary to the evidence:
  1. That Mr Bainbrigge gave certain evidence that was in fact given by his support person, Ms Provenzano;
  2. That Mr Bainbrigge gave evidence that the Patient was "extremely agitated";
  3. That Ms Masih and Ms Church said that Mr Loveridge said "If you hit me I'll hit you back";
  4. That Ms Masih and Ms Church said that "ACP Baxter had witnessed the slap, but when the Nursing staff looked at her after the slap she looked away";
  5. That "[b]oth paramedics admitted they did not request assistance from the carers as suggested in the OST handbook";
  6. That "ACP Loveridge's SHE report does admit use of the words "If you hit me, I will have to defend myself" used on a single occasion, despite denial of this during interview"'
  7. That Ms Masih "confirmed [Mr Bainbrigge's] version of events";
  8. That Mr Loveridge made "adverse comments that ACP Baxter had completed the eARF falsely".
  1. The Investigator, by making the statements at (37) in the Investigation Report, engaged in conduct that was:
  1. Likely to mislead a reader of the Investigation Report about the true nature of the evidence;
  2. Contrary to the requirements in the Workplace Investigations - A guide for investigators - September 2014 that:
  1. i
    the report "[deliver] findings to the authorised delegate that are accurate, informative and gained in a robust and ethical manner";
  2. ii
    "[t]he investigator must ensure that all evidence obtained is given careful consideration"; and
  3. iii
    "workplace investigation reports must be:  comprehensive; accurate; truthful".[153]
  1. Likely to mislead a reader of the Investigation Report about the true nature of the evidence;
  2. Contrary to the requirements in the Workplace Investigations - a guide for investigators - September 2014 that:
  1. i
    the report "[deliver] findings to the authorised delegate that are accurate, informative and gained in a robust and ethical manner";
  2. ii
    "[t]he investigator must ensure that all evidence obtained is given careful consideration"; and
  3. iii
    "workplace investigation reports must be:  comprehensive;  accurate;  truthful".[154]
  1. [266]
    This contention is irrelevant to my consideration of the matter. Relevantly, this submission does not have regard to Mr Emery's evidence that he had no reference to the Investigator's findings or conclusion.
  1. [267]
    Mr Emery's evidence, which I accept, was that he exercised an independent mind to make findings with respect to evidence attached to the investigation report and the other information collected during the show cause process. Consequently, I do not consider that the purported errors identified by Mr Loveridge, even if they were to be established, infect Mr Emery's decision.
  1. [268]
    Mr Loveridge further contends that Mr Hammond was "uncritical" in his adoption of the Investigation Report and that Mr Hammond was "not sufficiently careful to afford Mr Loveridge fairness".
  1. [269]
    Mr Loveridge also submits that Mr Draper was "uncritical" in his adoption of the Investigation Report and that Mr Draper was "not sufficiently careful to afford Mr Loveridge fairness".
  1. [270]
    In putting his contention, Mr Loveridge attempts to cast Mr Hammond and Mr Draper as relevant decision makers.  Whilst they each played a role in the show cause process, they did not have the requisite delegated authority to make a disciplinary finding decision or disciplinary penalty decision.
  1. [271]
    That is not to say that Mr Hammond and Mr Draper’s roles in the show cause process was not relevant to the overall consideration of the matter.  However, that consideration must be conducted having regard to the fact that they were not the relevant decision maker.  As noted above Mr Emery was the relevant decision maker.
  1. [272]
    With respect to Mr Hammond, Mr Loveridge contends that it was a consequence of his actions that Ms Baxter "turned against Mr Loveridge". In support of this, Mr Loveridge refers to correspondence send by Mr Hammond to Ms Baxter on 5 May 2020 where he erroneously provided particulars supporting Mr Loveridge's allegation to Ms Baxter. Mr Loveridge submits that this confused Ms Baxter and caused her to turn against Mr Loveridge.
  1. [273]
    I do not accept on the evidence before the Commission that the correspondence of 5 May 2020 caused Ms Baxter to "turn against" Mr Loveridge. Relevant to this proceeding, Ms Baxter changed her evidence with respect to what she witnessed at Opal Varsity Rise on 16 December 2019. Whilst Ms Baxter accepted in evidence that she did not know what was being put to her in the correspondence, I do not consider there is any evidence that this correspondence caused Ms Baxter to "turn against" Mr Loveridge. Consequently, I am not satisfied that Mr Loveridge's contention has been established.
  1. [274]
    Further, Mr Loveridge contends that Mr Draper did not obtain an adequate response to his 6 July 2020 letter. Mr Loveridge notes in his submissions that regard should be had to Mr Draper's letter to Ms Baxter dated 6 July 2020 as:

"It was the only attempt made by the Respondent to engage with the question of why Ms Baxter's evidence changed and whether her new story ought to be accepted in place of her earlier story".

  1. [275]
    Mr Draper was cross-examined with respect to his letter to Ms Baxter, in particular, his request for further information in relation to Ms Baxter's conflicting accounts of the events on 11 June 2019. Mr Loveridge contends that Mr Draper needed this further information to enable him to make an informed decision with respect to the allegations against Mr Loveridge and Ms Baxter.
  1. [276]
    Ms Baxter did provide a response to Mr Draper following his request for her to clarify why she changed her evidence. The fact that she did not provide a fulsome response does not result in any error on Mr Draper's behalf. Ms Baxter's response properly then formed part of the information to be provided to the decision maker.
  1. [277]
    Mr Loveridge also contends that Mr Emery failed to show sufficient care and attention.
  1. [278]
    Mr Loveridge submits that Mr Emery was "uncritical" in his adoption of the Investigation Report and that Mr Emery was "not sufficiently careful to afford Mr Loveridge fairness". In support of his position, Mr Loveridge refers to Mr Emery's conduct in suspending him, the erroneous rejection of Ms Church's evidence and that he was unaware of Ms Church's drawing.
  1. [279]
    Mr Loveridge contends that the decision made on 8 September 2020 to suspend him in the middle of a shift was unfair and harsh as it was done "without any apparent justification". When Mr Loveridge made a complaint about the circumstances of his suspension during the show cause process, Mr Emery provided the following by letter dated 20 November 2020:

That you were not suspended earlier can be explained by the fact that neither AC Hammond nor A/AC Draper, possessed the necessary delegations to suspend an officer under the QAS human resource delegations manual.

…

  1. [280]
    Mr Loveridge contends that the above explanation is "misleading" as Mr Emery fails to have regard to the earlier decision of Deputy Commissioner Metcalfe to require him to work under supervised practice. As noted above, I am satisfied that Mr Emery exercised an independent mind when considering the evidence during the show cause process. I accept Mr Emery's evidence that on or about 4 September 2020, he had formed a view based on the nature of the allegation and on the evidence before him that he should turn his mind as to whether Mr Loveridge should be suspended whilst the show cause process continued.
  1. [281]
    I consider that on the evidence before the Commission that Mr Emery had regard to the evidence before him in determining whether Mr Loveridge should be suspended. I do not consider that Mr Emery's response to Mr Loveridge was misleading insofar as neither Mr Hammond or Mr Draper had the required delegations to make such a decision. It was a known fact to Mr Loveridge that he was not suspended earlier by Deputy Commissioner Metcalfe. Consequently, I do not consider he was misled by Mr Emery. In any event, Mr Loveridge has not established how, if he was misled by Mr Emery, it would result in an error in the decision made.
  1. [282]
    Mr Loveridge submits that Ms Brightwell "discounted and rejected" Ms Church's evidence in the Investigation Report because she concluded that Ms Church did not see or hear Mr Loveridge allegedly strike the patient because she had her back towards Mr Loveridge while she was speaking to a Registered Nurse.  Mr Loveridge contends that the conclusion reached by Ms Brightwell was "unsafe and wrong" and that Mr Emery's reliance on the Investigation Report "led [him] into error".
  1. [283]
    In Ms Church's interview she stated that she witnessed the attempts to place the patient on the stretcher and recalls Mr Loveridge holding both of the patient's hands and saying words to the effect "these girls may not defend themselves but I will". Ms Church then stated that she then turned to the RN in charge and spoke to her. Relevantly, Ms Church appears to turn away at or about the time that, according to other witnesses, Mr Loveridge struck the patient. Whereas, Mr Loveridge contends that the evidence supports a conclusion that Ms Church was looking at the stretcher until he applied the seatbelt and then turned away, consequently supporting his version of events.
  1. [284]
    Mr Emery gave evidence that he drew a conclusion, based on Ms Church's evidence that she saw the patient strike Mr Loveridge then turned away to speak to the Registered Nurse and therefore had her back to Mr Loveridge at the relevant time.
  1. [285]
    Mr Emery states, which I accept, that he drew that conclusion on the information before him and did not rely on the Investigation Report. I am satisfied that the conclusion drawn by Mr Emery is a conclusion that is consistent with Ms Church's interview extract.
  1. [286]
    Further, Mr Loveridge contends that Mr Emery did not "closely" review the transcript before making the decision and consequently did not realise that Ms Church's drawing was not included in the material.
  1. [287]
    Mr Emery was cross-examined with respect to his failure to identify that Ms Church's drawing had not been provided by the Investigator. He responded that he thoroughly read Ms Church's transcript of interview but accepted that he did not identify that Ms Church's statement was not included in the material. As noted above, Mr Loveridge has not identified any error of consequence or substance that flows from the failure to include Ms Church's drawing. I am not satisfied that Mr Loveridge's contentions have established that Mr Emery was careless in the performance of his duties and relevantly with respect to his decision to substantiate the allegation.

Mr Loveridge was guilty of the misconduct

  1. [288]
    As noted in the disciplinary finding decision, Mr Emery concluded that the allegation was substantiated based on the evidence of the witnesses including Ms Masih, Mr Bainbrigge and Ms Baxter. They each provided direct and consistent evidence that they witnessed Mr Loveridge strike the patient. This finding was made in the context of Mr Loveridge admitting that he had said to the patient "If you hit me, I will defend myself" and "that's assault".
  1. [289]
    I consider that it was available on the evidence before Mr Emery for him to form this conclusion. I do not accept Mr Loveridge's contentions that Mr Emery was careless in performing his duties and making the decision.
  1. [290]
    I consider Mr Emery understood the seriousness of the allegation and undertook a process of considering the material in a careful and thorough manner.
  1. [291]
    I further accept that Mr Emery exercised an independent and open mind when considering the evidence. I accept that he did not have regard to the findings and conclusions of Ms Brightwell and consequently formed his own view on the material.
  1. [292]
    On the evidence before the Commission, there were four witnesses who deposed to seeing Mr Loveridge strike the patient.
  1. [293]
    For the reasons referred to above, I do not consider that I am able to place any weight on the evidence of Ms Baxter. Consequently, Ms Baxter's evidence will not be considered further by me.
  1. [294]
    However, the Commission did have the benefit of the direct evidence of Ms Masih, Mr Bainbrigge and Ms Wood. Mr Loveridge states that whilst each of these witnesses might have been doing "their best" their evidence was unreliable. I do not accept that submission.
  1. [295]
    I prefer the evidence of Ms Masih, Mr Bainbrigge and Ms Wood to the extent that they each gave evidence that they witnessed Mr Loveridge strike the patient.
  1. [296]
    It is relevant that Ms Masih, Mr Bainbrigge and Ms Wood, have since the evening of 11 June 2019, each maintained their respective accounts that they witnessed Mr Loveridge strike the patient.
  1. [297]
    I consider it reasonable given the passage of time since the incident, for their evidence with respect to hand placements and positions, particularly with respect to where Mr Loveridge and the patient had their hands prior to the strike to be less precise. Such matters are ultimately irrelevant in circumstances where there is direct and cogent evidence from each of these witnesses that they each saw Mr Loveridge strike the patient. I consider given the nature of the alleged conduct it is more likely to be a matter that a witness would recall with greater precision than events that happened leading up to it.
  1. [298]
    I have certainly had regard to Mr Loveridge's evidence and in particular that he has consistently denied striking the patient. I consider that the Commission should only be satisfied that Mr Loveridge is guilty of the conduct on probative and cogent evidence.
  1. [299]
    I consider that evidence is before the Commission.
  1. [300]
    Further, I have had regard to Mr Loveridge's alternative version of events, namely that he was grabbing the seatbelt when the witnesses erroneously thought they saw him strike the patient.
  1. [301]
    On the evidence, I am satisfied that each of the witnesses had lines of vision to the patient. Further, I accept that when Mr Loveridge's alternative version was put to Ms Masih and Mr Bainbrigge, they did not alter their positions.
  1. [302]
    Ms Masih, Mr Bainbrigge and Ms Wood were each extensively cross-examined with respect to this point and they did not accept that their evidence might be mistaken.
  1. [303]
    I have also had regard to the fact that it was not until after his recorded interview that Mr Loveridge provided his alternative version of events as a potential explanation for the evidence of at least Ms Masih and Mr Bainbrigge. I consider Mr Loveridge raised the alternative version of events to raise doubts about the direct evidence of Ms Masih, Mr Bainbrigge and Ms Wood. To the extent of any differences with respect to this matter, I accept the evidence of Ms Masih , Mr Bainbrigge and Ms Wood.
  1. [304]
    I have had further regard to the words Mr Loveridge admits he said to the patient. Relevantly, those words are "if you hit me I will defend myself" and "that's assault".
  1. [305]
    As noted above, those words were said to an elderly female dementia patient who was described as frail and small in stature. Mr Loveridge properly accepted that saying such words was inappropriate. However, I consider the fact that Mr Loveridge said these words cannot be dismissed merely as an inappropriate thing to say because they were said in the context of a sequence of events which ended with the allegation that Mr Loveridge struck the patient. Just as he warned the patient he would do.
  1. [306]
    There is some dispute on the evidence that Mr Loveridge also said words to the effect to the patient that "these girls may not defend themselves but I will". Evidence was given by Ms Masih and Mr Bainbrigge and it was recorded in Mr Church's interview that such words were said. Mr Loveridge denies saying these words.
  1. [307]
    I consider that such a statement is consistent with the other words Mr Loveridge has admitted to saying to the patient. Further, Mr Bainbrigge has stated from the outset that it was upon hearing words to that effect that he left the nurses station to investigate what was happening.
  1. [308]
    Consequently, on the evidence before the Commission, I am satisfied that Mr Loveridge engaged in the conduct as alleged. Further, given the nature of the conduct, I am satisfied that Mr Loveridge is guilty of misconduct within the meaning of s 18A of the AS Act.

Matters to be considered in deciding whether the dismissal was harsh, unjust or unreasonable: s 320 IR Act

Disciplinary penalty decision – termination of employment

  1. [309]
    As noted above, Mr Loveridge requested to attend a meeting with Mr Emery on 26 October 2020, to orally provide his show cause response. Mr Loveridge also provided a written response. In the decision, Mr Emery confirms that he received a copy of the transcript of the meeting prior to making the decision.
  1. [310]
    Mr Emery addressed a number of matters Mr Loveridge raised in his written response, including, an allegation from Mr Loveridge that he had not been shown certain documents during his initial interview with Ms Brightwell but as confirmed by Mr Emery, he had subsequently been provided with those documents with the first show cause notice which allowed him an opportunity to respond to them. There were other matters raised but it is unnecessary to detail them at this point.
  1. [311]
    Mr Emery determined, that the termination of employment was the appropriate penalty for the following reasons:

In determining whether termination of your employment is the appropriate disciplinary action to take against you, I have carefully considered all the evidence available to me in this matter and I have given serious consideration to the effect of termination and its likely impact on you and your family.

However, the QAS holds a unique position of trust and confidence within the community. Our paramedics are welcomed into the patient's home and their lives at some of the most vulnerable times the patient can experience.

Whilst I understand your desire to remain an Advanced Care Paramedic (ACP) with QAS and while I appreciate the difficulties you will face in securing alternative employment, your conduct whilst employed in the role of a paramedic with QAS was entirely inconsistent with the position our organisation, and its employees hold within the community.

While I have also considered alternative roles, including Patient Transport Officer and Emergency Medical Dispatcher, each of these roles also requires compliance with QAS policy, procedures and expectations.

Consequently I no longer have the necessary trust or confidence in your ability to comply with the Code of Conduct for the Queensland Police Service, perform the duties expected of your role as an ACP nor do I have the confidence in your ability to act as a responsible healthcare professional in any role within the QAS.

While I appreciate the significance of such disciplinary action, I find that your conduct is entirely contrary to the values of the organisation and is fatal to the employment relationship between you and QAS. Accordingly, pursuant to section 18B(1) of the Act, I have determined to terminate your employment effective immediately.

…

Mr Loveridge's submissions

  1. [312]
    Mr Loveridge submits that the dismissal was unfair in so far as it was harsh, unjust or unreasonable.
  1. [313]
    Mr Loveridge claims the dismissal was unjust, because he was not guilty of the misconduct on which the Respondent acted; unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the Respondent; and harsh, because of its consequences for the Applicant's personal and economic circumstances.[155]
  1. [314]
    For the reasons referred to above, I have found that Mr Loveridge was guilty of misconduct and I do not consider the matter was decided on inferences that could not reasonably have been drawn.

Section 320(a) of the IR Act: Was Mr Loveridge notified of the reasons for his dismissal?

  1. [315]
    Mr Loveridge was notified of the reasons for his termination by correspondence, which was approved and signed by Mr Emery on 20 November 2020.

Section 320(b): Did the dismissal relate to operational requirements or Mr Loveridge's conduct, capacity or performance?

  1. [316]
    Mr Loveridge's dismissal related to his conduct. For the reasons set out above in these findings, I am satisfied that Mr Loveridge engaged in conduct that amounted to misconduct within the meaning of that term in s 18A of the AS Act.

Section 320(c): Had Mr Loveridge been warned about the conduct, capacity or performance; or was he given an opportunity to respond to the allegation about the conduct, capacity or performance?

  1. [317]
    Mr Loveridge had not been warned about his conduct, prior to his dismissal, in respect to the allegations.
  1. [318]
    The substantiated conduct is not consistent with Mr Loveridge's obligation pursuant to the standards under the Code of Conduct, nor with the role which Mr Loveridge performed within the QAS. Given these matters, I do not find that the failure to warn Mr Loveridge about his conduct can or should materially contribute to a finding that his dismissal was unfair.
  1. [319]
    Further, Mr Loveridge was given an opportunity to respond to the conduct during the course of the show cause process. In this regard, he was provided with several opportunities to respond to the show cause notice both in writing and in person and the show cause on penalty notice. Mr Loveridge's responses were considered and referred to in the decision on findings and the decision to terminate Mr Loveridge's employment made by Mr Emery. Consequently, Mr Loveridge was given an opportunity to respond to the allegations and the proposed disciplinary action.

Section 320(d): any other matters the commission considers relevant

Was Mr Loveridge's dismissal proportionate to the conduct? 

  1. [320]
    Mr Loveridge submits that because of the impact that the termination of employment will have on him, that his termination of employment was a harsh outcome.
  1. [321]
    Mr Emery, in his letter of termination, as noted above, addressed the reasons why he considered termination of employment to be appropriate.
  1. [322]
    In considering the issue of proportionality of penalty to the conduct, I have also had regard to the impact the decision to terminate Mr Loveridge's employment will have on him. In his favour, he is an accomplished senior employee of long-standing service with no prior disciplinary matters. There is no doubt that the termination of his employment will have an impact on him. Mr Loveridge gave evidence that the dismissal has affected his health and his finances. He also gave evidence that he had found it difficult to find meaningful alternative employment since the dismissal.
  1. [323]
    However, equally, and against his favour, an employee such as Mr Loveridge  is expected to conduct themselves in a manner that is consistent with a standard of conduct contained in the Code of Conduct.
  1. [324]
    Ultimately, I conclude, that Mr Loveridge, as a very senior and long-term employee with the QAS, did know that the conduct in which he engaged in with respect to the allegations was not of a standard expected of a senior paramedic. I have formed the view, having regard to evidence that Mr Loveridge's conduct on 11 June 2019 radically deviated from the expected conduct of a senior paramedic. 
  1. [325]
    Relevantly, I am satisfied that the substantiated conduct is of such a nature that it was a completely inappropriate reaction to the situation, that it put the safety of a patient at actual risk of harm, that it did not adhere to the standards of the QAS and that it presented as a reputational risk to the QAS.
  1. [326]
    In my view, having regard to his position and the trust and confidence placed in him by the QAS, Mr Loveridge's dismissal was proportionate to the conduct in which he engaged in respect of the substantiated allegations.
  1. [327]
    For this reason, I have concluded that Mr Loveridge's dismissal was not disproportionate to the substantiated conduct.

Conclusion

  1. [328]
    The ultimate issue for determination in this proceeding was whether Mr Loveridge's dismissal from his position was harsh, unjust or unreasonable.
  1. [329]
    Mr Loveridge was dismissed because the QAS was reasonably satisfied that, in respect of the allegation, he had engaged in conduct, which amounted to misconduct within the meaning of s 18A of the AS Act.
  1. [330]
    I am satisfied that on the evidence before this Commission, Mr Loveridge engaged in the conduct the subject of the allegation. For this reason, the dismissal was substantively fair.
  1. [331]
    As referred to above, Mr Loveridge's dismissal was procedurally fair.
  1. [332]
    Mr Loveridge did not meet the relevant requirements imposed upon him as an employee by a standard of conduct of the Code of Conduct in respect of the allegation and consequently contravened that standard. The substantiated conduct is serious and I am satisfied that it has ended the QAS's trust and confidence in Mr Loveridge as an employee of the QAS. For these reasons, Mr Loveridge's dismissal was proportionate to the conduct.
  1. [333]
    For the reasons referred to herein, and having regard to the matters referred to in s 320 of the IR Act, I have formed the view that Mr Loveridge's dismissal was not unfair within the meaning of s 316 of the IR Act.
  1. [334]
    Mr Loveridge's application for reinstatement is dismissed.
  1. [335]
    Accordingly, I make the following order:[156]
  1. The application for reinstatement is dismissed.
  1. If the Respondent intends to apply for any costs order, the application for costs is to be filed and served within 28 days.

Footnotes

[1] Industrial Relations Act 2016 (Qld), s 317.

[2] Applicant's closing submissions filed 22 December 2021, [1.2], [1.18].

[3] In this decision all references to 'the patient' will be shown as such to protect the patient's identity.

[4] Application for reinstatement filed 9 December 2020, [6].

[5] Industrial Relations Act 2016 (Qld) s 316.

[6] (1992) 36 FCR 20, 28.

[7] Applied in Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467 (McHugh and Gummow JJ).  

[8] Ibid.

[9] Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258 (Hall P). 

[10] Coleman v State of Queensland (Department of Education) [2020] QIRC 032; Gold Coast Health District v Walker [2001] QIC 63; (2001) 168 QGIG 258, 259  (Hall P).

[11] Gold Coast Health District v Walker [2001] QIC 63; (2001) 168 QGIG 258, 259.

[12] Gold Coast Health District v Walker [2001] QIC 63; (2001) 168 QGIG 258, 259; Queensland Teachers' Union of Employees (for Norman Wayne Armstrong) v State of Queensland acting through Department, Education, Training and Arts [2009] QIRC 11, [203] and [204].

[13] [2020] QIRC 032.

[14] Coleman v State of Queensland (Department of Education) [2020] QIRC 032, [69].

[15] T8-43, ll 25-35.

[16] [2018] QIRC 136.

[17] (1993) 144 QGIG 914.

[18] Laegal v Scenic Rim Regional Council [2018] QIRC 136, [66].

[19][2001] QIC 63; (2001) 168 QGIG 288.

[20] [2020] QIRC 032.

[21] [2020] QIRC 66 at [9]-[10].

[22] At [69].

[23] T8-84, ll 11-37.

[24]Briginshaw v Briginshaw (1938) 60 CLR 336.

[25] Ibid 361-362 (Dixon J).

[26] Ibid.

[27] See O'Neill v State of Queensland (Queensland Ambulance Service) [2021] QIRC 370, [44] applying Gilmour v Waddell & Ors [2019] QSC 170.  See also Flegg v CMC & Anor [2014] QCA 42, [3].

[28] Applicant's closing submissions filed 22 December 2021, [2.4]-[2.6].

[29] [2008] QSC 209.

[30] Ibid [18].

[31] (1989) 16 NSWLR 197.

[32] Mathieu v Higgins [2008] QSC 209, [26].

[33] Coleman v State of Queensland (Department of Education) [2020] QIRC 032.

[34] Respondent's closing submissions filed 23 December 2021, [31].

[35] Coleman v State of Queensland (Department of Education) [2020] QIRC 032, [62].

[36] Respondent's closing submissions filed 23 December 2021, [33].

[37] Respondent's closing submissions filed 23 December 2021, [21]-[22].

[38] Exhibit 2: pp 672-683, Letter from Deputy Commissioner Craig Emery, ASM to Mr Loveridge dated    20 November 2020.

[39] Respondent's closing submissions filed 23 December 2021, [36].

[40] Exhibit 3, Learning History - Jonathan Loveridge printed on 9 March 2021.

[41] T2-79, ll 23-26.

[42] T2-80, ll 3-4; T2-80, ll 18-33.

[43] T2-80, l 37.

[44] T2-85, ll 32-36; T2-86, ll 20-33.

[45] T1-30, l 27 to T1-31, l 2; T2-86, ll 5-13.

[46] T1-86, ll 44-45; T2-89, ll 24-29.

[47] T1-87, ll 24-47.

[48] Exhibit 9.

[49] T1-88, ll 5-46.

[50] T1-89, ll 3-12.

[51] T1-89, ll 21-37.

[52] Exhibit 34.

[53] Exhibit 2: p 231.

[54] T6-3, l 25 to T6-4, l 13.

[55] T6-5, ll 35-36;  T5-71, ll 33-38;  Also T5-71, ll 33-38.

[56] Exhibit 2: pp 236-237; T5-72, ll 10-16;  T6-6, ll 32-47.

[57] T6-8, ll 16-17.  See also Mr Young's email at 1.57 am 12 June 2019 (Exhibit 2, p 234) which records: ''Carolyn [Provenzano] had not witnessed the alleged assault but had informed me that three other staff at the residence were writing statements''.

[58] Exhibit 2: p 234.

[59] T2-66, ll 35-41;  Respondent's closing submissions filed 23 December 2021, [65] and [67].

[60] Exhibit 38: email 19 June 2019 at 5.33 pm from Ms Gribaudo to Mr Draper.

[61] Exhibit 37: email from Mr Armstrong to Ms Victoria South at Opal Varsity Rise dated 22 August 2019 at 1.23 pm and Ms South's email in reply of 22 August 2019 at 1.37 pm.

[62] Exhibit 37: email from Mr Armstrong to Ms Curtis (copies to Ms Gribaudo) of 23 August 2019 at 8.36 am.  See also T6-49, l 37 to T6-50, l 9.

[63] T6-72, l 35 to T6-73, l 2; T6-73, l 13.

[64] T6-75, ll 37-45.

[65] Exhibit 2: pp 18-19.

[66] T3-30, ll 1-10; Exhibit 43.

[67] Exhibit 2: pp 241-281.

[68] Exhibit 2: pp 282-315.

[69] Exhibit 2: pp 315-346.

[70] Exhibit 2: pp 357-411.

[71] Exhibit 2: pp 425-532.

[72] Exhibit 2: pp 347-356.

[73] Exhibit 2: pp 414-416.

[74] Exhibit 2: pp 421-424.

[75] Exhibit 2: pp 32-33.

[76] On 27 January 2020.

[77] Exhibit 2: pp 29-32.

[78] An earlier version of the Report was issued on 11 February 2020 but was said to contain an error.

[79] T6-85, ll 1-2.

[80] T6-85, ll 1-27.

[81] Exhibit 2: p 45.

[82] Mr Draper had taken over the acting Assistant Commissioner role for the Gold Coast LASN at that time.

[83] Exhibit 28: T7-29, ll 1-21.

[84] Exhibit 29.

[85] Exhibit 2: pp 600-602: Letter to the applicant from Mr Draper of 6 August 2020; See T7-30, ll 21-37.

[86] Exhibit 2: pp 604 0 608: Letter from the applicant Mr Draper of 18 August 2020.

[87] Exhibit 48.

[88] T7-75, ll 33-45.

[89] Exhibit 2: p 610.

[90] T7-80, ll 23-26.

[91] Exhibit 2: pp 642-643.

[92] Exhibit 2: p 642: email from Ms Baxter to Ms Brightwell of 29 September 2020 at 8.26pm.

[93] Exhibit 2: p 645: email from Ms Masih to Ms Brightwell of 1 October 2020 at 5.57pm.

[94] Exhibit 2: p 638: email from Mr Bainbrigge to Ms Brightwell of 2 October 2020 at 1.42pm.

[95] T 7-80, ll 40-45.

[96] That on 11 June 2019, you struck [the patient] on the face with your hand.

[97] Exhibit 2: pp 614-650: Letter from Mr Emery to applicant on 6 October 2020, together with attachments.

[98] Exhibit 2: pp 665-671: Letter from Applicant to Mr Emery of 26 October 2020.

[99] Exhibit 2: pp 673-683.

[100] Exhibit 2: pp 10-16.

[101] Either on 12 or 13 June 2019.

[102] Exhibit 2: p 13.

[103] Other than his initial denial to Ms Barnes.

[104] Exhibit 2: p 14.

[105] Exhibit 2: pp 2-3.

[106] T2-10, ll 27-39

[107] Respondent's closing submissions filed 23 December 2021, [346]-[347]; Exhibit 2: pp 533-537, particularly pp 535-537.

[108] Exhibit 2: pp 442-443.

[109] Exhibit 2: pp 29-33.

[110] Exhibit 2: pp 29-33, in particular p 31[3].

[111] T1-65, ll 32-41.

[112] T2-18, ll 1-3.

[113] T4-14, l 23.

[114] T4-63, ll 30-33.

[115] T4-81, ll 6-33.

[116] T4-67, l 25 to T4-68, l 7; T4-68 ll 25-44.

[117] T4-66, ll 1-2.

[118] T4-67 ll 4-16.

[119] T4-69, ll 42-43.

[120] T4-70, ll 1-3.

[121] T4-96, l 15.

[122] Mr Bainbrigge drew a diagram of the scene as he remembered it that was tendered into evidence (Exhibit 32).

[123] T5-20, ll 44-45.

[124] T5-25, l 29.

[125] T5-17, ll 16-43.

[126] Exhibit 33.

[127] T7-12, ll 23-24; ll 33-34, ll38-46.

[128] T7-15, ll 1-4.

[129] T7-3, ll 18-25.

[130] T7-5, ll 22-23.

[131] Respondent's closing submissions filed 23 December 2021, [189]-[191]; Exhibit 2: pp 316-346; Exhibit 49: 'CS-7'.

[132] Respondent closing submissions filed 23 December 2021, [385].

[133] Exhibit 2: pp 423-424.

[134] T7-84, ll 17-30.

[135] T3-51 ll 24-32.

[136] T7-71, ll 25-26.

[137] T7-71, ll 44-46.

[138] Exhibit 50.

[139] T7-83, l 31 to T7-84 l 14.

[140] T7-84, ll 35-39.

[141] T7-88, ll 29-35.

[142] T7-91 l 32 to T7-92 l 23.

[143] T7-92, ll 25-33.

[144] T7-92, ll 35-41.

[145] (1959) 243 CLR 361

[146] Applicant's closing submissions filed 22 December 2021, [3.33].

[147] Exhibit 22: EV -6

[148] Exhibit 2: p 29 (Mr Loveridge's email to Ms Brightwell of 27 January 2020, p 31).

[149] T7-80, l 26.

[150] T4-47, ll 1-3; Exhibit 2: p 642 (Baxter's email of 29 September 2020).

[151] T 4-102, ll 1-20; Exhibit 2: p 645 (Masih's email of 1 October 2020).

[152] T5-51, ll 18-19; Exhibit 2: p 638 (Bainbrigge's email of 2 October 2020).

[153] Applicant's closing submissions filed 22 December 2021, [3.63].

[154] Applicant's closing submissions filed 22 December 2021, [3.66].

[155] Applicant's closing submissions filed 22 December 2021, [1.18].

[156] By order issued on 21 July 2023.

Close

Editorial Notes

  • Published Case Name:

    Loveridge v State of Queensland (Queensland Ambulance Service) (No. 2)

  • Shortened Case Name:

    Loveridge v State of Queensland (Queensland Ambulance Service) (No. 2)

  • MNC:

    [2023] QIRC 207

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    24 Jul 2023

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
Blows v Townsville City Council [2016] QIRC 66
1 citation
Jump To
Cite 1 - [2016] QIRC 66
Bostik (Aust) Pty Ltd v Gorgevski (1992) 36 FCR 20
2 citations
Jump To
Cite 1 - (1992) 36 FCR 20
Cite 2 - (1992) 36 FCR 20
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
2 citations
Jump To
Cite 1 - (1995) 185 CLR 410
Cite 2 - (1995) 185 CLR 410
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
7 citations
Jump To
Cite 1 - [2020] QIRC 32
Cite 2 - [2020] QIRC 32
Cite 3 - [2020] QIRC 32
Cite 4 - [2020] QIRC 32
Cite 5 - [2020] QIRC 32
Cite 6 - [2020] QIRC 32
Cite 7 - [2020] QIRC 32
Flegg v Crime and Misconduct Commission [2014] QCA 42
2 citations
Jump To
Cite 1 - [2014] QCA 42
Cite 2 - [2014] QCA 42
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Gold Coast District Health Service v Walker [2001] QIC 63
6 citations
Jump To
Cite 1 - [2001] QIC 63
Cite 2 - [2001] QIC 63
Cite 3 - [2001] QIC 63
Cite 4 - [2001] QIC 63
Cite 5 - [2001] QIC 63
Cite 6 - [2001] QIC 63
Gold Coast District Health Service v Walker (2001) 168 QGIG 288
1 citation
Jump To
Cite 1 - (2001) 168 QGIG 288
Gold Coast Health District v Walker (2001) 168 QGIG 258
5 citations
Jump To
Cite 1 - (2001) 168 QGIG 258
Cite 2 - (2001) 168 QGIG 258
Cite 3 - (2001) 168 QGIG 258
Cite 4 - (2001) 168 QGIG 258
Cite 5 - (2001) 168 QGIG 258
Jones v Dunkel (1959) 243 CLR 361
1 citation
Jump To
Cite 1 - (1959) 243 CLR 361
Laegal v Scenic Rim Regional Council [2018] QIRC 136
3 citations
Jump To
Cite 1 - [2018] QIRC 136
Cite 2 - [2018] QIRC 136
Cite 3 - [2018] QIRC 136
Mathieu v Higgins [2008] QSC 209
3 citations
Jump To
Cite 1 - [2008] QSC 209
Cite 2 - [2008] QSC 209
Cite 3 - [2008] QSC 209
Nesbit v Metro North Hospital and Health Service [2020] QIRC 66
2 citations
Jump To
Cite 1 - [2020] QIRC 66
Cite 2 - [2020] QIRC 66
O'Neill v State of Queensland (Queensland Ambulance Service) [2021] QIRC 370
2 citations
Jump To
Cite 1 - [2021] QIRC 370
Cite 2 - [2021] QIRC 370
Pillai v Messiter (No.2) (1989) 16 NSW LR 197
2 citations
Jump To
Cite 1 - (1989) 16 NSW LR 197
Cite 2 - (1989) 16 NSW LR 197
Queensland Teachers' Union of Employees (for Armstrong) v State of Queensland acting through Department of Education, Training and the Arts [2009] QIRC 11
2 citations
Jump To
Cite 1 - [2009] QIRC 11
Cite 2 - [2009] QIRC 11
Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914
2 citations
Jump To
Cite 1 - (1993) 144 QGIG 914
Cite 2 - (1993) 144 QGIG 914
Wang v Crestell Industries Pty Ltd (1997) 73 IR 454
1 citation
Jump To
Cite 1 - (1997) 73 IR 454

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.