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Van Berkel v State of Queensland (Queensland Health)[2023] QIRC 264

Van Berkel v State of Queensland (Queensland Health)[2023] QIRC 264

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Van Berkel v State of Queensland (Queensland Health) [2023] QIRC 264

PARTIES:

Van Berkel, John

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/704

PROCEEDING:

Public Sector Appeal

DELIVERED ON:

12 September 2023

MEMBER:

Power IC

HEARD AT:

On the papers

ORDERS:

  1. That Mr David Marr is entitled to represent the Appellant in this appeal;
  1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with the following decision:
  • Allegation One is substantiated and in accordance with s 91(b) of the Public Sector Act 2022 (Qld) and a disciplinary finding is made of misconduct;
  • Allegation Two is substantiated and in accordance with s 91(d) of the Public Sector Act 2022 (Qld) a disciplinary finding is made of having, contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; and
  • Allegation Three is not substantiated.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Sector Appeal – where disciplinary findings made against the appellant – where appellant appeals the substantiation of allegations – where appellant appointed a union as agent for representation – where contact person from the union is a lawyer employed as an industrial advocate – whether s 530A of the Industrial Relations Act 2016 (Qld) permits the appellant to appoint a lawyer working as an industrial advocate – consideration of whether appellant instructed the person to act as lawyer – where an officer of an industrial association who is a lawyer may act as an agent for a party to an appeal

LEGISLATION:

Acts Interpretation Act 1954 (Qld), sch 1, s 14B

Industrial Relations Act 2016 (Qld), ss 530A, 562B and 562C

Industrial Relations and Other Legislation Amendment Act 2022 (Qld), ss 530

Legal Profession Act 2007 (Qld), ss 5,

Public Service Act 2008 (Qld), s 194

Public Sector Act 2022 (Qld), ss, 91, 131

Explanatory Notes, Public Service & Other Legislation Amendment Bill 2020 (Qld)

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Briginshaw v Briginshaw [1938] 60 CLR 336

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

Gilmour v Waddell & Ors [2020] QSC 170

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

Jones v Dunkel (1959) 101 CLR 298

Mathieu v Higgins [2008] QSC 209

Richards v State of Queensland (Queensland Ambulance Service) [2022] QIRC 159

Together Queensland, Industrial Union of Employees v State of Queensland [2018] QIRC 046

Watson v Foxman (1995) 49 NSWLR 315

Reasons for Decision

Introduction

  1. [1]
    On 16 August 2022, Mr David Marr from the Australian Workers' Union Queensland ('the AWU'), filed an appeal notice on behalf Mr John Van Berkel ('the Appellant'), appealing against a disciplinary finding decision made by the State of Queensland (Queensland Health) ('the Respondent') pursuant to s 194 of the Public Service Act 2008 (Qld).[1]
  1. [2]
    Mr Marr filed a notice of appointment of agent along with the appeal notice, confirming that the Appellant has appointed the AWU, with Mr Marr as the contact person, as his agent in the proceedings.
  1. [3]
    On 14 September 2022, the Respondent informed the Commission that Mr Marr 'may be a lawyer who holds a current practising certificate and is therefore, subject to the Legal Profession Act 2007 (Qld) ('the LPA Act')'. The Respondent provided an outline of Mr Marr's education and employment history and requested that the Appellant make submissions as to whether s 530A of the Industrial Relations Act 2016 (Qld) ('the IR Act') permits Mr Marr from representing the Appellant.
  1. [4]
    On 21 October 2022, a mention was held where the Respondent confirmed that they intended to press the issue of the Appellant's representation by Mr Marr. A directions order was subsequently issued directing parties to file submissions addressing, inter alia, the issue of Mr Marr representing the Appellant as agent in the proceedings.
  1. [5]
    Prior to considering the substantive appeal, the issue for determination at first instance is whether s 530A of the IR Act prohibits Mr Marr from representing the Appellant as an agent in the proceedings.

Relevant legislative provision

  1. [6]
    Section 530A of the IR Act provides for representation in relation to a proceeding for a public service appeal. At the time the appeal notice and the notice of appointment of agent was filed, s 530A of the IR Act was outlined as follows:

530A  Representation—public service appeals

  1. This section applies in relation to a proceeding for a public service appeal.
  1. A party to the appeal may—
  1. appear personally; or
  2. be represented in the proceeding by another person under section 529.
  1. However, a party may not be represented under subsection (2)(b) by a lawyer.
  2. For this section, a party is taken not to be represented by a lawyer if the lawyer is—
  1. an employee or officer of the party or person; or
  2. if the party is represented by an organisation—an employee or officer of the organisation.

Mr Marr's submissions

  1. [7]
    Mr Marr contends that the contention that he is acting in his capacity as a lawyer by acting on behalf of the Appellant in the substantive appeal should be answered in the negative, outlining the following considerations:

a.  He is employed as an officer of a registered Industrial Association (The Australian Workers' Union of Employees, Queensland) pursuant to the meaning set out within Schedule 5 of the IR Act.

b.  He is not a paid agent directly instructed to act on behalf of the Appellant.

c.  The Explanatory Memorandum cited herein provides for a clear exception for officers of industrial associations who incidentally also hold legal qualifications to act for members of the industrial association of which they are employed by.

d.  S 530(5) permits a lawyer to appear in proceedings notwithstanding the restrictions contained in s 530. It does so because the party is "taken not to be represented" by a lawyer. The person is still an Australian Lawyer. However, the restrictions of the right of appearance which would otherwise apply under s 530 do not have any application in circumstances where the person is an employee or officer of the party....

  1. [8]
    Mr Marr refers to the decisions of Richards v State of Queensland (Queensland Ambulance Service) ('Richards')[2] and Together Queensland, Industrial Union of Employees v State of Queensland[3] in support of his position.
  1. [9]
    Mr Marr further contends that the Respondent's 'tactics' are in 'poor form', as it:
  1. demeans or discredits Mr Marr personally despite not having any reasonable basis for doing so, nor having had any proper regard to the widely available case law;
  1. seeks to continually deny the Appellant procedural fairness to his industrial right to be represented by his industrial association to discredit the procedural issues raised with respect to the substantive appeal; and
  1. further delays the proceedings unnecessarily in the hopes that the Appellant will 'give up' and discontinue the appeal.
  1. [10]
    Mr Marr refers to Model Litigant Principals, submitting that the Respondent must conduct themselves as model litigants in the conduct of all litigation by adhering to the principles of fairness. The Appellant submits that, in objecting to the Appellant's representative, is likely to be in contravention of these principles.

Respondent's submissions

  1. [11]
    At the outset, the Respondent submits that Mr Marr's contentions are 'entirely baseless', highlighting the following:

Section 530A of the IR Act prescribes clear criteria for the representation of parties in public service appeals. It is an important legislative provision and is directly relevant to the fairness to parties in the conduct of public service appeals. The Respondent therefore submits it is entitled to, and indeed proper, that it seeks the Commission's assistance and decision in relation to an issue it identifies of compliance with s 530A of the IR Act. Doing so is, in the Respondent's submission, consistent with the State's obligation as the Model Litigant, to act properly in legal proceedings to protect the State's interests.

  1. [12]
    The Respondent contends that Mr Marr should not be permitted to act for the Appellant as he is a lawyer who is subject to the LPA Act, submitting that:
  1. the explanatory notes for the Public Service & Other Legislation Amendment Bill 2020 (Qld) ('the 2020 Amendment Bill'), which inserted s 530A into the IR Act, did not include any exception to the prohibition against legal representation in public service appeals as stated in Richards[4] and/or refer to the legislature's stated intention regarding the insertion of the former s 204 into the Public Service Act 2008 (Qld);
  1. having regard to the explanatory notes of the 2020 Amendment Bill, the effect of ss 530A(2) and (3) of the IR Act is that a party cannot be represented by a person who is a lawyer who is subject to the LPA Act, irrespective of whether the lawyer purports to act in another capacity as merely a non-legal 'agent';
  1. permitting such a circumstance to occur would lead to the situation where a lawyer who is subject to the LPA Act could act for a party in a public service appeal merely because the party has instructed them to act as their 'agent' not as their lawyer;
  1. this would circumvent the prohibition against legal representation prescribed in s 530A of the IR Act and be contrary to the intention of the legislature in enacting the provision as set out in the explanatory notes for the 2020 Amendment Bill; and
  1. the party who had engaged the lawyer would be at an advantage because they would have the benefit of the lawyer's legal expertise, irrespective of the capacity in which the lawyer purported to act.
  1. [13]
    The Respondent further contends that, where the Commission does not accept the Respondent's interpretation of s 530A of the IR Act, Mr Marr should not be permitted to act for the Appellant because the Appellant has instructed Mr Marr to act as his lawyer, submitting that:
  1. such circumstance is prohibited by s 530A(3) of the IR Act;
  1. the Appellant has not provided any evidence of the nature of Mr Marr's role with the AWU, however, notes that he is employed as an Industrial Advocate;
  1. on the available evidence, it would be open to the Commission to determine that Mr Marr acts in a legal capacity to some extent in his role as Industrial Advocate with the AWU, relying on his legal qualifications, his prior experience as an employed lawyer at a law firm and maintenance of his current Queensland Law Society practising certificate, which names the AWU as his employer;
  1. if Mr Marr did not act in a legal capacity in his role as Industrial Advocate, it would not be necessary for him to maintain a current practising certificate;
  1. if Mr Marr is permitted to act for the Appellant, he will bring his legal knowledge, expertise, and advocacy experience to the matter, providing a significant advantage over the Respondent who is not legally represented in the proceedings; and
  1. the Appellant's reliance on s 530(5) of the IR Act to justify Mr Marr's representation is misconceived as s 530(5) does not apply to public service appeals.
  1. [14]
    The Respondent outlines that they do not, however, object to the Appellant accessing representation from an Industrial Advocate employed by the AWU who is not a lawyer and is not subject to the LPA Act.

Consideration of representation

  1. [15]
    There is no dispute between the parties that Mr Marr is a 'person who is admitted to the legal profession under this Act or a corresponding law' and accordingly is a lawyer in accordance with s 5(1) of the LPA Act. Mr Marr satisfies the definition of a lawyer pursuant to schedule 1 of the Acts Interpretation Act 1954 (Qld) which defines a lawyer as 'an Australian lawyer within the meaning of the Legal Profession Act 2007'.
  1. [16]
    The second consideration is whether, pursuant to s 530A(3)(a), the party in this matter has instructed Mr Marr to act as the party's lawyer. There is no evidence before me that the Appellant in this matter instructed Mr Marr to act as his lawyer. Evidence that may support such an arrangement might include a client costs agreement or similar disclosure document as required pursuant to Part 3.4 of the LPA Act.
  1. [17]
    It is clear that the Appellant contacted his union, the AWU, seeking industrial assistance in this matter. Consequently, the AWU has directed one of its employed industrial advocates, Mr Marr, to assist the Appellant. The Appellant has not instructed Mr Marr to act as his lawyer, rather he has requested industrial assistance from his union. 
  1. [18]
    The Respondent submits that it would be open to determine that Mr Marr acts in a legal capacity 'to some extent' in his role as an Industrial Advocate, relying on his legal qualifications, prior experience at a law firm and maintenance of his QLS practising certificate. The relevant statutory provision does not require consideration of the extent to which a representative relies upon their legal knowledge or experience, rather it is whether the representative has been instructed to act as a party's lawyer.
  1. [19]
    The Respondent contends that the Appellant will be at a significant advantage over the Respondent who is not legally represented in the proceedings as Mr Marr will bring his legal knowledge, expertise and advocacy experience to the matter. Again, the extent to which an agent may have legal and advocacy experience and expertise is not the statutory test. I note however that it is not uncommon for industrial advocates employed in employee and employer organisations along with state government departments to also have legal qualifications and significant legal experience. The holding of such qualifications and experience does not disqualify industrial advocates from acting as agents in circumstances where they have not been instructed to act as a party's lawyer.
  1. [20]
    To confirm my interpretation of the s 530(3)(a) I have considered extrinsic material as permitted pursuant to s 14B(1) of the Acts Interpretation Act 1954. Section 14B(3) of the Acts Interpretation Act provides that extrinsic material includes an explanatory note or memorandum to the Bill that contained the provision.
  1. [21]
    The previous statutory provisions relating to legal representation for public service appeals were contained the Public Service Act 2008 (Qld). The Explanatory Notes for the 2020 Amendment Bill provides:

Clause 204 makes provision for the representation of parties and states that a party to an appeal may appear personally or by an agent. The clause refines the restriction on a party being represented by a lawyer to state that a party may not be represented by a person if the party has instructed the person to act as their lawyer, and the person would by subject to the Legal Profession Act 2007. This seeks to address government and union concerns by clarifying that a person is not precluded from representing a party in a non-legal capacity, simply because they hold legal qualifications. The rephrased clause would therefore allow for instances where an officer of an industrial association, who also happens to be a lawyer, to act as an agent for a party to an appeal in their industrial capacity.

(emphasis added)

  1. [22]
    In circumstances where there is no evidence that the Appellant has instructed Mr Marr to act as his lawyer, and where the extrinsic material confirms that an officer of an industrial association is deemed to be acting as an agent for a party to an appeal in their industrial capacity, it cannot be the case that Mr Marr is prevented from representing the Appellant by virtue of s 530A(3) of the IR Act.
  1. [23]
    After considering all of the circumstances, I find that s 530A of the IR Act does not prohibit Mr Marr, in his capacity as an industrial advocate employed at an industrial association, from representing the Appellant as his agent in this appeal.

Substantive appeal

  1. [24]
    The Appellant is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Protective Services Officer at the Nambour General Hospital within Sunshine Coast Hospital and Health Service ('SCHHS').
  1. [25]
    On 1 September 2021, Ashdale Solutions ('Ashdale') was appointed to conduct a workplace investigation regarding an incident that occurred on 24 July 2021 involving the Appellant and a patient at the Nambour General Hospital.
  1. [26]
    Following receipt of Ashdale's investigation report ('the investigation report') dated 26 January 2022, on 30 May 2022, Ms Joanne Shaw, Chief Operating Officer, SCHHS, issued a show cause letter to the Appellant, outlining the following allegations:[5]

1. Allegation One

 On or about 24 July 2021, John van Berkel used excessive force when dealing with a male patient at the Nambour General Hospital Emergency Department. In particular, that he made contact with the patient's head/face with a closed fist while the patent was restrained, with more force than was necessary/appropriate in the circumstances.

2. Allegation Two

 On or about 24 July 2021, John van Berkel inappropriately failed to activate his body worn camera when dealing with a male patient at the Nambour General Hospital Emergency Department, in circumstances where it has been alleged the patient's aggressive/abusive behaviour had begun to escalate.

3. Allegation Three

 John van Berkel provided false and/or misleading information within a 'Statement of Events' in relation to an incident involving a male patient at the Nambour General Hospital Emergency Department on or about 24 July 2021. Specifically, he incorrectly indicated that he 'pushed' the patient's face away with a closed hand, in circumstances where excessive force had actually been applied.

  1. [27]
    On 18 June 2022, the Appellant's union representative provided a response on behalf of the Appellant to the show cause letter dated 30 May 2022.
  1. [28]
    On 29 July 2022, Ms Shaw issued a disciplinary finding letter to the Appellant, advising that all three allegations had been substantiated on the balance of probabilities ('the decision'). The Appellant was advised that serious consideration was being given to the imposing the disciplinary action of the termination of the Appellant's employment.
  1. [29]
    By appeal notice filed on 16 August 2022, the Appellant, pursuant to s 194 of the Public Service Act 2008 (Qld)[6], appealed against the decision.
  1. [30]
    The Appellant filed an appeal against the decision in the Industrial Registry prior to the commencement of the Public Sector Act 2022 ('PS Act'). In accordance with s 324, the appeal must be decided under chp 3, pt 10 of the PS Act.

Appeal principles

  1. [31]
    The appeal must be decided by reviewing the decision appealed against.[7] As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[8] An appeal under ch 11 pt 6 div 4 of the IR Act is not by way of rehearing,[9] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [32]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[10] The issue for determination is whether the decision of Ms Shaw to substantiate the allegations and make disciplinary findings was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [33]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. confirm the decision appealed against; or
  1. set the decision aside and substitute another decision; or
  1. set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Reasons for appeal

  1. [34]
    The Appellant contends that the substantiation of the allegations is unjust and/or unreasonable and states that the incident and the subsequent investigation has had a significant impact on his mental, emotional and physical wellbeing as well as detrimental impact on his immediate family.
  1. [35]
    The Appellant disputes Allegation One and denies 'punching' the patient, contending that:
  1. the physical contact was a 'push' with the use of the Appellant's palm with his fingers in a curled or fist-like position;
  1. the force was reasonably necessary to avoid being assaulted by the patient;
  1. the use of force was proportionate in the context of the patient's verbal abuse and aggressive behaviour that required the restraint;
  1. if the force used was disproportionate, as alleged by the Respondent, the patient would likely have had visible injuries which are not documented throughout the investigation; and
  1. the lack of injuries sustained by the patient is corroborated by the fact that the patient was able to physically move their face without discomfort and was recorded to have visibility laughed on multiple occasions after the incident.
  1. [36]
    The Appellant does not dispute Allegation Two, however, contends that the incident occurred rapidly with little warning and further, that the other officers involved in the incident also failed to activate their body worn cameras.
  1. [37]
    The Appellant disputes Allegation Three, contending that:
  1. the Appellant had always maintained that the contact used with the patient was a 'push' rather than a 'punch', which is corroborated and/or confirmed by the other witness statement; and
  1. the inconsistent evidence of witness, Ms Tracy Sterling, Mental Health/Social Worker, calls into question her reliability as a witness.

Submissions

  1. [38]
    Directions Orders were issued calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Appellant's submissions

  1. [39]
    The substance of the Appellant's submissions relate to the evidence relied upon by Ashdale as part of their investigation and will be considered below. The Appellant otherwise relies on his submissions made as part of his appeal notice.
  1. [40]
    The Appellant outlines that, of the seven witnesses whose evidence was relied upon by Ashdale, two were regarded as reliable, three were regarded as unreliable as they did not observe the incident and the other two were summarily dismissed due to their evidence being tainted by way of attempting to protect themselves or others. The Appellant submits that Ashdale's preference and/or reliance of certain witnesses and complete disregard for others was unreasonable for the reasons set out in Briginshaw v Briginshaw ('Briginshaw').[11]
  1. [41]
    To the extent the submissions relate to the decision, the Appellant submits, in summary, that:
  1. conclusions reached by Ashdale likely infected the Respondent's decision making;
  1. the evidence of Ms Sarah O'Brien, Security Officer, that was deemed to be unreliable by Ashdale due to her inconsistency in evidence, is critical in considering the proportionality of the force used with respect to Allegation One;
  1. the Human Resources Manager, Ms Kerry Pereira may have pressured/intimidated Ms O'Brien regarding how the incident should be recorded when completing the incident report;
  1. the 'verbiage' used by all witnesses is significant to determine whether the force used was excessive;
  1. the Respondent had dismissed the evidence of several eyewitnesses on the basis that they did not see in full or have clear vision of the incident, yet relied upon the statement of Mr Adam Cook, Occupational Violence Prevention Officer, who was not a witness to the event and only had a conversation with Ms O'Brien after the incident to corroborate a statement made by Ms O'Brien, despite Ashdale disregarding her evidence due to it being unreliable;
  1. the matter is extremely serious and warrants substantial proof of the allegations on the balance of probabilities on the basis that the Appellant has been accused of serious assault and fraud by omitting or deliberately providing false testimony; and
  1. there is a distinction between providing deliberately misleading evidence and failing to recount the entirety of an incident in detail. The Appellant submits that there no deliberate acts of deception have been undertaken in the course of the investigation process.
  1. [42]
    The Appellant further filed an affidavit, outlining his role and responsibilities as a Protective Services Officer, a chronology of the incident the subject of the decision and the investigation process.

Respondent's submissions

  1. [43]
    The Respondent outlines extensive submissions with respect to each of the substantiated allegations which are summarised below.
  1. [44]
    The Respondent contends that the decision to make the disciplinary finding against the Appellant was fair and reasonable, submitting, in summary, that:
  1. it was open to Ms Shaw to prefer the evidence of some witness over others, including the evidence provided by the Appellant;
  1. it is clear that Ms Shaw carefully considered the Appellant's response to the allegations and balanced it against all the available evidence, prior to substantiating the allegations;
  1. Ms Shaw carefully and independently considered all the evidence provided by each witness, including the evidence of the Appellant, and set out detailed reasoning and balancing of the evidence, and relevant excerpts of the investigation report;
  1. Ashdale's considerations and findings are not relevant to Ms Shaw's decision to make disciplinary findings against the Appellant;
  1. it is not Ashdale's role to find allegations substantiated or to make disciplinary findings against the Appellant. Rather, it is their role to collate all evidence and material regarding the matter and provide an analysis of the evidence available for Ms Shaw to consider;
  1. Ashdale has no bearing on the decisions made with respect to the disciplinary process itself;
  1. Ms Shaw was not 'infected' by the findings of the Ashdale investigation and she made it clear to the Appellant in the decision that she had relied upon her own independent consideration of the evidence in making the decision;
  1. it was open to Ms Shaw to make her own findings and interpretations of the evidence, including the submissions and evidence provided by all witnesses and further, Ms Shaw did not merely follow the suggestions of Ashdale; and
  1. Ms Shaw specified in the decision why she preferred the credibility of some witnesses to others and why particular evidence was accepted over others.

Further submissions of the Appellant

  1. [45]
    In further submissions, the Appellant contends that a Jones v Dunkel[12] ('Jones v Dunkel') inference ought to be drawn on the basis that that the Appellant raised significant procedural concerns around the Respondent's preference of evidence unfavourable to the Appellant. The Appellant submits that if such inference is drawn, the basis of which the allegations have been substantiated, partially, if not completely, is void of reasonable basis and the Respondent's case fails in its entirety pursuant to the principles of Briginshaw.
  1. [46]
    The Appellant notes that the Respondent has failed to call both Ms Sterling & Ms O'Brien to give evidence before the Commission, the only two witnesses who directly observed the incident as concluded by Ashdale.
  1. [47]
    The Appellant submits that the Respondent's failure to provide affidavit material for any of the witnesses means that none of the evidence relied upon by the Respondent in the course of substantiating the allegations has been tendered which undermines the Respondent's case against the Appellant.

Further submissions of the Respondent

  1. [48]
    In further submissions, the Respondent denies that an adverse inference ought to be drawn because it has not filed any affidavit material in relation to the appeal as:
  1. sections 562B(2) and (3) of the IR Act, provides that the Commission is to decide a public service appeal by reviewing the decision appealed against and that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable;
  1. during the course of the disciplinary process, the decision maker did not seek additional information from the Appellant, complainant, or other witnesses, other than the material that is currently before the Commission;
  1. all of the material before the decision maker at the time of their decision dated 29 July 2022 is currently before the Commission to determine whether the decision to make disciplinary findings against the Appellant was fair and reasonable;
  1. it would not be appropriate for the Respondent to obtain additional evidence to put before the Commission that was not before the decision maker when they made their decision. Doing so would broaden the scope of the appeal beyond the purpose and process set out in ss 562B(2) and (3) of the IR Act;
  1. the Appellant has not filed any affidavit material from any person other than himself, in particular, any evidence from Ms Sterling and/or Ms O'Brien, whom the Appellant claimed were the only two witnesses who directly observed the incident; and
  1. the Appellant has only filed a statutory declaration from himself containing information already before the Commission and the Respondent did not consider it necessary to obtain additional affidavit material from witnesses in response to the Appellant's statutory declaration.

Consideration

  1. [49]
    Consideration of an appeal of this kind requires a review of the decision to determine if the decision was fair and reasonable in the circumstances.
  1. [50]
    The Appellant has made submissions with respect to the Respondent's 'lack of evidentiary material', contending that a Jones v Dunkel inference should be drawn for the failure to call particular witnesses. The Appellant further submits that the failure to submit affidavit material for witnesses means that none of the incident reports, statements of witnesses or other documents relied upon have been tendered, thereby undermining the Respondent's case against the Appellant.
  1. [51]
    In a Directions Order issued by the Commission, parties were directed to file submissions in support of their case, addressing both the orders sought by the Respondent regarding the ability of Mr David Marr to represent the Appellant in this matter and the substantive appeal. As is ordinarily the case with Public Sector Appeals, neither party was directed to file affidavit material. Appeals filed pursuant to s 130 of the PS Act are routinely determined on the papers, and in circumstances where a hearing was not sought, no adverse inference will be drawn for the Respondent's decision not to call witnesses as the matter has been determined without a hearing. Similarly, no adverse inference will be drawn for the Respondent's decision not to file affidavit material where they were directed to file submissions only. 

Allegation One

  1. [52]
    Allegation One was outlined as follows:

On or about 24 July 2021, John van Berkel used excessive force when dealing with a male patient at the Nambour General Hospital Emergency Department. In particular, that he made contact with the patient's head/face with a closed fist while the patent was restrained, with more force than was necessary/appropriate in the circumstances.

  1. [53]
    Ms Shaw outlined her findings in the decision in the following terms:

In accordance with my obligations, I confirm that whilst I have accepted the finding by the investigator, I have relied upon my own consideration of the evidence as outlined in the report to come to my decision to accept the finding.

In substantiating allegation one, I have determined the force used by you in all the circumstances was inappropriate and excessive. Further, I have also determined you used a closed fist when you made contact with the patient's head/face. Finally, I do not accept, based on the evidence before me, that you acted in self defence.

I found Ms Sterling's evidence to be credible and compelling as to the physical contact by you towards the patient. Based on the evidence before me, I also accept that whilst Ms O'Brien was found to be a reluctant witness and has made various descriptions of your physical interaction with the patient – whether that be punch, strike or push, Ms O'Brien has remained consistent in her description of your physical interaction with the patient as having been an excessive use of force. Having reviewed the evidence, I accept the investigator's findings regarding the probative value placed on the various witness accounts.

…

Whilst my finding pertains to your use of excessive force – ie more force than was necessary/appropriate in the circumstances of the incident (with a closed fist), I feel compelled to respond to your assertions that you used an approved technique.

…

In consideration of the evidence, I do not accept your physical contact with the patient's face/head was the use of an approved technique by you. I refer to the evidence of Mr Cooke:

It was not until a few weeks after the incident that Mr van Berkel began disclosing more about the event. He recalled him saying that when the patient attempted to bite [sic] he closed his hand into a fist like thing using his palm and he was attempting to push the patient's face away to stop him from spitting in his direction'.  He had not refuted that he had a closed fist but that he 'sort of used his palm to push the patient's face in the opposite direction so he wouldn't spit at him'. He denied that he had used a closed fist and punched the patient.

It was not an approved technique to push a patient away with a closed fist. The approved technique was to do this with an open hand. This was known as a redirection. Another technique was head stabilisation which was a technique where an open palm was used to build a fence either side of the face or a roof on top of the forehead to stop the patient moving forward or side to side.

  1. [54]
    The Appellant submits that the preference or reliance on certain witness statements over others was unreasonable, as was the preference of the views as to the proportionality of force of some witnesses over others.
  1. [55]
    The Appellant submits that the investigator dismissed the evidence of witnesses on the basis that they did not have clear vision of the incident yet relied upon the statement of Mr Cook who was not a witness to the event. The decision outlined that Mr Cooke's description of the physical contact was 'highly relevant' given his role as an Occupational Violence Prevention Advisor for the Health Service.
  1. [56]
    The Appellant submits that insufficient regard has been given to the statement of Ms Davis who provided a statement stating that Ms O'Brien approached her immediately after the incident and commented that the Appellant had used the heel of his open hand to move the patient away. This information may be considered unreliable on the basis that the accounts provided by both Ms O'Brien and the Appellant himself confirmed that the Appellant had not used an open hand.
  1. [57]
    The Appellant submits that the Respondent's conclusion was infected by the fact that only the statement of Ms Sterling was accepted, and her language referred to the force as being far more excessive in the circumstances. I note that Ms O'Brien, who was physically closer to the incident than Ms Sterling, also described the action as having more force than necessary. It was open to the decision maker to determine that some witnesses were more reliable based on the proximity of the witness to the incident, the consistency of the witness' recollection and any other factors considered relevant.
  1. [58]
    The Appellant also submits that it was a significant error on the part of the investigator to not give any consideration to the fact that both Ms Davis and Mr Mastboom regarded the force to be proportionate and necessary in the circumstances. The Appellant submits that it was unfair and unreasonable to accept the views of certain witnesses as to the proportionality of force and then discredit the views of other witnesses as to the proportionality of the force.
  1. [59]
    The statement provided by Ms Davis provides limited if any assistance in determining whether Allegation One is made out. Ms Davis outlined her recollection of the patient's conduct, however, does not describe the particular incident which gave rise to this allegation. Ms Davis did not state that the actions of the Appellant were proportionate and necessary in the circumstances, and in fact does not appear to refer to the Appellant's action specifically in her statement. Ms Davis' general assessment that 'the methods used to restrain were definitely called for and were performed in a professional and timely manner' do not specifically relate to the actions of the Appellant in making contact with the patient's face. Ms Davis made clear in her statement that 'at no point did I see Security doing anything but restraining [the patient]'. In circumstances where it is not in dispute that the Appellant's hand came into contact with the patient's face, it is clear that Ms Davis was not a witness to this event.
  1. [60]
    The statement provided by Mr Mastboom is also of limited assistance to the Appellant, although I acknowledge that it describes the difficult circumstances in which the Appellant and other staff were working. Mr Mastboom provided the following information in his statement:

I witnessed [the patient] lashing out, trying to hit the security officer to the left of him. He was making verbal threats, tried to assault him and was deliberately spraying blood from his heavily bleeding thumb towards staff. In order to stop this from happening, security officers stepped in to physically restrain him again. At that time, [the patient] spat, and bit the hand of the security officer to his left. In an attempt to protect himself from [the patient] biting him, the security officer responded by forcefully moving [the patient's]' head, and mouth away from him. I heard [the patient] say: 'you hit me', but from what I saw this was a push with an open hand on [the patient's]  face to press his head on the stretcher to stop him from biting and spitting.

  1. [61]
    The difficulty with Mr Mastboom's statement is that the evidence of both the Appellant and Ms O'Brien was that the Appellant did not use an open hand. The Appellant described closing his hand 'into a fist like thing using his palm’ as he was 'attempting to push the patient's face away to stop him from spitting in his direction'. Given Mr Mastboom's contradictory evidence, it is unlikely that he was in a position to give a credible account of the specific action. I note Mr Mastboom's description of the patient's conduct as agitated, unpredictable and having a fluctuating mood and behaviour. In those circumstances Mr Mastboom provided his opinion that 'security staff used justified force to prevent [the patient] assaulting them, along with other staff'. This general assessment of 'security staff' and 'other staff' cannot be a persuasive indicator of the specific action of the Appellant.
  1. [62]
    The Appellant submits that the investigator's discrediting of Ms O'Brien's evidence on the basis that she was attempting to protect the Appellant was an illogical and unfair conclusion because at all times Ms O'Brien considered the force of the Appellant to be excessive.
  1. [63]
    The Appellant refers to the statements of Ms O'Brien noted by the investigator that she felt pressured/intimidated by the HR Manager Kerry Pereira about referring to the contact as a 'punch' rather than a 'push' or 'strike' as she later described it.
  1. [64]
    The Appellant submits that further evidence should be obtained from Ms O'Brien and Ms Pereira following the concerns raised as to the veracity of the investigation. I am not of the view that further evidence is required in the circumstances of this appeal, where there is no suggestion that all relevant material was not before the decision maker and where the question to be determined is whether the decision was fair and reasonable at the time it was made.
  1. [65]
    I accept the Appellant's submission with respect to the reliability of Ms O'Brien's evidence. However, the statement provided by Ms O'Brien to the investigator does not assist the Appellant. Ms O'Brien was presented with a copy of the statement she typed on the day of the relevant incident, which included the following:

RN Jen administered IMI into patient's leg. He then threatened to spit in their faces and made the sound of pulling back and hurling and then shaped his mouth with the intention to spit. Van Berkel then punched the patient's face in what looked like an attempt to prevent being spat at and to direct face towards pillow. Van Berkel then punched the patient in the face a second time and as the patient attempted to spit another time he pulled his fist back again and at the same time he went to punch a third time. I said 'Enough, stop John'.

  1. [66]
    Ms O'Brien told the Investigator that she felt 'a little bit pressured and intimidated at the time' as she would not have normally used the word 'punch', rather that it was the use of a 'closed fist'. Ms O'Brien stated:

I felt a little bit pressured and intimidated at the time because it was sort of like - I would have said a closed fist, that would be my normal words but at the time when I had this phone call I was kind of like well, what's a closed fist? A closed fist is – what's that? It's a punch isn't it? I felt like I wouldn't have normally used the word punch. I definitely would have used closed fist because it was a closed fist but a punch to me was sort of more – the way he did it was closed fist definitely to his jaw, but then it was sort of guiding him away from his face and held there. It wasn’t sort of retracted.

  1. [67]
    Ms O'Brien's statement to the Investigator continued:

A closed fist was definitely used 'but it was pushed and held whereas a punch in my opinion is a quick sort of thing, a jab, a quick one retracted. This was more of a – definitely a closed fist to his face but held for a few seconds to turn the face away from John and then retracted'. She confirmed that it was like a push to the side of the cheek and held away and then pulled back. In terms of force, she said 'It was quite forceful. More forceful than I believe probably was really needed but yeah it wasn't had enough to be classed as a punch'.

…

The reason she told Mr van Berkel to stop was because obviously it did look quite forceful and it's not what we would normally do. I suggested 'Let's put the mask on. We’ll just pull the mask up to stop him from spitting'.

However, before they had a chance to do this Mr van Berkel 'attempted to do another push' and her finger was injured. She confirmed that there was enough force behind the push to damage her finger. When asked if it was therefore possibly more than just a shove, she responded 'Yeah'. In her view the same amount of force was used for all three pushes. She said 'Maybe with my hand coming in at the same time as this it probably created it to be a bit of a harder impact … it probably would have been maybe more forceful the third time around just with my added momentum potentially'.

  1. [68]
    Ms O'Brien told the Investigator that if she could write her statement again she would probably use the words 'closed fist strike' or 'strike hold' rather than the word punch. She also indicated that she would change the words she said in the statement from 'Enough, stop John' to 'Stop, just hold the arm, just hold his shoulder and arm down'. Ms O'Brien stated that she had been told by Ms Pereira in their phone call that someone had heard her say the words 'Enough, stop John' and this was why she included it in her statement.
  1. [69]
    Ms O'Brien's statement to the Investigator indicated that she felt pressured by Ms Pereira to provide more specific details in her statement, particularly whether the contact was a 'punch'. Ms O'Brien's statement acknowledged 'that there was more strength behind it than just a push and in her view more force than necessary was used in the circumstances, however she saw no evidence of an injury to [the patient's] face'.
  1. [70]
    The Appellant contends that the Investigator's determination that the Appellant's evidence was tailored to support the Appellant was illogical. Even if this contention is accepted, it is clear that Ms O'Brien considered that the Appellant used a closed fist to strike the patient's face. If Ms O'Brien's assessment of the appropriateness of the force is ignored, the fact that the strike hit her finger resulting in a sprained ligament and swelling, requiring a week off work to recover, demonstrates a significant level of force was applied.
  1. [71]
    Ms O'Brien's statement also confirmed that an accessible alternative was available at the time in the form of the patient's mask. Ms O'Brien was of the view that the attempt by the patient to spit could be addressed by raising his mask over his mouth. It was open to the decision maker to determine that this alternative should have been used.
  1. [72]
    I note that the investigator ultimately concluded that the disagreement regarding whether the action was 'punch' or a 'push' was irrelevant and that the force was disproportionate.
  1. [73]
    The Appellant's submission that this allegation should not be substantiated on the basis that no injury was suffered by the patient is not persuasive. The injury to Ms O'Brien's finger clearly demonstrates the level of force used by the Appellant in his action of either 'pushing' or 'punching' the patient. 
  1. [74]
    Ms Shaw relied upon the evidence of Mr Cook to determine that the force used by the Appellant was not an approved use of force technique, noting that it is not permitted for staff to apply force to a patient by way of making contact with their head of face with a closed fist. Ms Shaw reasonably concluded that there was no evidence to support the assertion that an approved technique was used and that the force used was excessive. Ms Shaw also determined that there was an appropriate alternative available being the raising of the patient's mask. On the evidence available it was open to Ms Shaw to make these determinations.
  1. [75]
    The Appellant refers to the Briginshaw principles, noting the High Court decision that the more serious an allegation, the more substantial the proof required in order to prove such an allegation on the balance of probabilities. In circumstances where the evidence of Ms Sterling and Ms O'Brien support a conclusion that the Appellant used a closed fist to make forceful contact with the patient’s face, it was open to Ms Shaw to conclude that the allegation was substantiated.

Allegation Two

  1. [76]
    Allegation Two was outlined in the following terms:

On or about 24 July 2021, John van Berkel inappropriately failed to activate his body worn camera when dealing with a male patient at the Nambour General Hospital Emergency Department, in circumstances where it has been alleged the patient's aggressive/abusive behaviour had begun to escalate.

  1. [77]
    It is not in dispute that the Appellant was wearing a body worn camera and did not activate the camera during the relevant incident.
  1. [78]
    The Appellant acknowledged that he did not activate his body worn camera, stating that he forgot to press the record button due to the quick escalation of the incident.
  1. [79]
    Ms Shaw considered that it was difficult to believe the incident did not prompt the Appellant to record the interaction given that the patient had been placed in a three person hold/restraint prior to the Appellant’s physical contact with him.
  1. [80]
    It is entirely plausible that the Appellant simply forgot to press the record button when the incident began to escalate. However in circumstances where the standard operating procedures provide that body worn cameras must be operated to capture footage of incidents during a shift, the question of whether the Appellant’s actions were intentional or not are not a relevant consideration.
  1. [81]
    In circumstances where the facts are not in dispute, it was open to Ms Shaw to substantiate this allegation.

Allegation three

  1. [82]
    Allegation Three was outlined in the following terms:

John van Berkel provided false and/or misleading information within a 'Statement of Events' in relation to an incident involving a male patient at the Nambour General Hospital Emergency Department on or about 24 July 2021. Specifically, he incorrectly indicated that he 'pushed' the patient's face away with a closed hand, in circumstances where excessive force had actually been applied.

  1. [83]
    This allegation relates to the information provided by the Appellant in a 'Statement of Events'. The Respondent contends that the information was false and/or misleading in that the Appellant incorrectly indicated that he 'pushed' the patient's face away with a closed hand in circumstances where excessive force had actually been applied.
  1. [84]
    Ms Shaw stated that she considered the investigation report and carefully considered the Appellant's Statement of Events. Ms Shaw stated that the document 'clearly downplays the events involving your physical contact with the patient, the seriousness of the interaction, including as a direct result of your actions, the injury of your colleague, Ms O'Brien'. The decision confirms that Ms Shaw did not consider that the Appellant's Statement of Events was a fulsome report into the incident.
  1. [85]
    The Appellant submits that there is a significant distinction between the concept of providing deliberately misleading evidence and failing to entirely recount an incident in every minute detail. The Appellant refers to the comments of McLelland CJ in the matter of Watson v Foxman[13] in support of this submission.
  1. [86]
    The basis upon which Ms Shaw determined that the Appellant's report was not fulsome was the disparity between his statement that he pushed the patient's face away and his response of 18 June 2022 acknowledging his physical contact with the patient occurred 'multiple times'. The Appellant stated in his Statement of Events that he 'pushed his face away from me. My hand was closed to avoid getting bitten'.
  1. [87]
    The Statement of Events of the Appellant was largely consistent in that he conceded that he made contact with the patient's face with a closed hand but described that this contact was a push rather than a punch and that this was a reasonable exercise of self-defence to protect himself and potentially other staff members from harm. The Appellant acknowledged that his hand was closed and has maintained throughout the process that he pushed the patient's face away rather than punched to prevent him spitting.
  1. [88]
    The Respondent submits the following:

Given Ms Shaw's findings in respect to Allegation 1, which were reasonably open for her to make, it is clear Mr van Berke's Statement of Events was not accurate. It was reasonable for Ms Shaw to conclude Mr van Berkel provided an untruthful description of his hand, the level of force he used, and the frequency of the use of force on the patient, in an attempt to justify and lessen the seriousness of his conduct. Additionally, Mr van Berkel omitted material facts from his Statement of Events, including the patient telling Mr van Berkel he was hurting him, and Ms O'Brien receiving an injury when she attempted to intervene.

  1. [89]
    I am not of the view that Allegation Three can reasonably be substantiated. The Appellant had a right to put forward his account of events to the best of his recollection. At no stage did the Appellant concede that he had used unreasonable force. There were several witnesses who also held that view. A finding that unreasonable force was used does not render the statements made by the Appellant and other witnesses dishonest. Whilst the Appellant was required to give a truthful account, the failure to mention aspects raised by the Respondent does not demonstrate dishonesty to the standard required. It is clear that the description of the Appellant's hand was difficult based on the statement of both the Appellant and Ms O'Brien. It seems to me that Ms O'Brien tried to explain the hand motion as honestly as she could, struggling with the difference between the terminology of a 'punch' as opposed to a 'push'. Ms O'Brien's statement demonstrated that she did not consider the action to be a 'punch' as the Appellant's hand did not retract in between the three actions.
  1. [90]
    No reasonable conclusion could be drawn that Ms O'Brien was untruthful, with her subsequent Statement providing a more detailed description of the Appellant's actions. Similarly, it appears that the Appellant attempted to describe his actions as best he could following the event, with a more detailed description provided in his statement to the investigator.
  1. [91]
    The Respondent states that the Appellant's statement 'I pushed his face away from me. My hand was closed to avoid getting bitten' was inconsistent with the findings of Allegation One. The evidence of Ms O'Brien supports the description of the action as a 'push' and Ms Stirling's RiskMan entry supports this description of the patient 'attempting to bite the offending security officer on the hand'. Whilst Ms Stirling was of the view that the Appellant had engaged in an inappropriate use of force, the risk of being bitten by the patient was acknowledged. The Appellant has always maintained that his actions were appropriate given his perception of the safety risks in the circumstances.
  1. [92]
    It does not follow that because Allegation One has been substantiated, the Appellant was untruthful. Ms Shaw stated in the decision "I do not consider that your 'Statement of Events' was a fulsome report into what can only be described as a serious incident" and determined that on the basis of this finding the Appellant was guilty of misconduct. The Appellant was entitled to provide his account of the events. The information provided at a later date to the investigator outlined further details, however he has consistently held the view that he did not punch the patient nor use excessive force. It is not unusual for there to be differences between witnesses in their recollections of particular events, and the differences generally do not give rise to accusations of dishonesty. The same witness rarely gives the exact same account when interviewed on separate occasions months apart. The fact that the Appellant’s Statement of Events was different in minor ways to his interview statement and did not reflect the findings made by Ms Shaw does not demonstrate dishonesty on the part of the Appellant.
  1. [93]
    The decision maker was entitled to determine which witness information she considered to be most reliable, particularly given the number of varying versions put forward by the witnesses. However, the Appellant was equally entitled to put forward his account of the events, many aspects of which were supported by witnesses. An allegation that the Appellant provided misleading information is serious and requires more compelling evidence than the minor changes in information provided and the substantiation of the allegation. For the reasons outlined above, the decision to substantiate Allegation Three and the resulting disciplinary finding was not fair and reasonable. 

Grounds for discipline

  1. [94]
    Ms Shaw made a number of disciplinary findings following the substantiation of the allegations.  These findings give rise to grounds for discipline pursuant to s 91 of the PS Act.
  1. [95]
    Section 91 of the PS Act provides:

91  Grounds for discipline

  1. A public sector employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  2. been guilty of misconduct; or
  3. been absent from duty without approved leave and without reasonable excuse; or
  4. contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or
  5. used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
  6. contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee’s employment or secondment by, in response to the requirement—
  1. failing to disclose a serious disciplinary action; or
  2. giving false or misleading information; or
  1. contravened, without reasonable excuse, a provision of—
  1. this Act, other than section 39 or 40; or
  2. another Act that applies to the employee in relation to the employee’s employment; or
  1. contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. A disciplinary ground arises when the act or omission constituting the ground is done or made.
  2. Also, a chief executive may discipline, on the same grounds mentioned in subsection (1), a public sector employee under section 94 or a person under section 95.
  3. To remove any doubt, it is declared that a disciplinary ground does not arise in relation to a public sector employee only because the employee’s work performance or personal conduct fails to satisfy the work performance and personal conduct principles or the public sector principles.
  4. In this section—

misconduct means—

  1. inappropriate or improper conduct in an official capacity; or
  2. inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.

Example of misconduct—

victimising another public sector employee in the course of the other employee’s employment in the public sector

relevant standard of conduct —

  1. for a public sector employee, means—
  1. standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  2. a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994; and
  1. for a public sector employee who is an ambulance officer under the Ambulance Service Act 1991, section 13(1)—includes a code of practice under section 41 of that Act; and
  2. for a public sector employee who is a fire service officer under the Fire and Emergency Services Act 1990—includes a code of practice under section 7B of that Act.

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

  1. [96]
    Ms Shaw made two disciplinary findings. Following the substantiation of Allegation Two, Ms Shaw made a disciplinary finding that, on the basis that the Appellant did not activate his body worn camera during the incident, he had contravened without reasonable excuse a direction given by a responsible person. This finding was open to Ms Shaw on the evidence available.
  1. [97]
    Following the substantiation of Allegations One and Three, the Appellant was determined to be guilty of misconduct.
  1. [98]
    As noted by Deputy President Merrell in Coleman v State of Queensland (Department of Education), ('Coleman')[14] the PS Act does not provide any guidance as to what is meant by 'inappropriate' or 'improper' conduct apart from the definition in s 91(5).
  1. [99]
    In Coleman, the observations of Justice Daubney in Mathieu v Higgins ('Mathieu')[15], when construing 'misconduct' were considered:

Justice Daubney thought the observations of Kirby P in Pillai v Messiter (No 2) were instructive in construing 'misconduct' in s 10(a). In Pillai v Messiter (No 2), Kirby P, in addressing the meaning of the expression 'misconduct in a professional respect' in the Medical Practitioners Act 1938, said:

But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession.  Something more is required. It includes a deliberate departure from accepted standards for such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.

Justice Daubney held that the decision of Kirby P assisted in the construction of 'misconduct' in the QAS Policy because:

the words 'disgraceful' and 'improper', while included in the definition in s 10(a) as alternatives, should not be regarded as wholly independent and each term should be read as giving colour to the other; and

the definition must be read in context in that 'misconduct' was listed as one form of 'unacceptable workplace behaviour' and which was expressly separated from other forms of sub-optimal workplace behaviour such as 'carelessness, incompetence or inefficiency'.

Justice Daubney went on to conclude:

These two considerations compel the conclusion that 'misconduct,' as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct. As the policy stands, '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. [100]
    Deputy President Merrell outlined in Coleman the following with respect to the definition of misconduct in the PS Act:

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.[16]

  1. [101]
    Ms Shaw determined that the Appellant's use of force was excessive and unreasonable in the circumstances and a complete departure from the standard expected of him. The conduct substantiated in Allegation One can reasonably be considered a deliberate departure from accepted standards in the workplace. Accordingly, it was open to Ms Shaw to determine that the conduct met the threshold of misconduct in relation to Allegation One.
  1. [102]
    As noted above at 92, the decision to substantiate Allegation Three was not fair and reasonable and the disciplinary finding of misconduct in relation to this allegation is set aside.
  1. [103]
    I note that the witness statements describe a very difficult working environment in which all staff had to contend with a challenging patient during the relevant incident. Whilst it is acknowledged that training is provided to employees to deal with such incidents, I also note that in circumstances in which employees face threats of violence, provocation and abuse, the reactions to these threats do not have to be perfect to be considered reasonable or appropriate. Unfortunately, the actions of the Appellant in this matter fell short of what could be considered appropriate in the circumstances.
  1. [104]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[17] 

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[18]

  1. [105]
    Applying the principles outlined above, I do not consider that the disciplinary findings in relation to Allegations One and Two lack justification in the circumstances. Accordingly, the disciplinary finding associated with these allegations will be confirmed.
  1. [106]
    I am not satisfied that the disciplinary finding in relation to Allegation Three is fair and reasonable. Accordingly, the disciplinary finding associated with this allegation will be set aside.

Order

  1. [107]
    I make the following orders:
  1. That Mr David Marr is entitled to represent the Appellant in this appeal.
  1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with the following decision:
  • Allegation One is substantiated and in accordance with s 91(b) of the Public Sector Act 2022 (Qld) and a disciplinary finding is made of misconduct;
  • Allegation Two is substantiated and in accordance with s 91(d) of the Public Sector Act 2022 (Qld) a disciplinary finding is made of having, contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; and
  • Allegation Three is not substantiated.

Footnotes

[1] Equivalent provision in the Public Sector Act 2022 (Qld) is s 131.

[2] [2022] QIRC 159.

[3] [2018] QIRC 046.

[4] at [52].

[5] The particulars of each allegation referred to various parts of the investigation report.

[6] PS Act s 131, (repealed).

[7] IR Act s 562B(2).

[8] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[9] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008. 

[10] IR Act s 562B(3).

[11] [1938] 60 CLR 336.

[12] (1959) 101 CLR 298.

[13] (1995) 49 NSWLR 315, 318.

[14] [2020] QIRC 032.

[15] [2020] QSC 209.

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

[17] [2019] QSC 170.

[18] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Van Berkel v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Van Berkel v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 264

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    12 Sep 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
Barr v Amalgamated Property Maintenance Pty Ltd [2020] QSC 170
1 citation
Jump To
Cite 1 - [2020] QSC 170
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
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
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
3 citations
Jump To
Cite 1 - [2020] QIRC 32
Cite 2 - [2020] QIRC 32
Cite 3 - [2020] QIRC 32
Gilmour v Waddell [2019] QSC 170
1 citation
Jump To
Cite 1 - [2019] QSC 170
Jones v Dunkel (1959) 101 CLR 298
2 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Mathieu v Higgins [2008] QSC 209
1 citation
Jump To
Cite 1 - [2008] QSC 209
Richards v State of Queensland (Queensland Ambulance Service) [2022] QIRC 159
2 citations
Jump To
Cite 1 - [2022] QIRC 159
Cite 2 - [2022] QIRC 159
Shepherd v Nominal Defendant [2020] QSC 209
1 citation
Jump To
Cite 1 - [2020] QSC 209
Together Queensland, Industrial Union of Employees v State of Queensland [2018] QIRC 46
2 citations
Jump To
Cite 1 - [2018] QIRC 46
Cite 2 - [2018] QIRC 46
Watson v Foxman (1995) 49 NSWLR 315
2 citations
Jump To
Cite 1 - (1995) 49 NSWLR 315
Cite 2 - (1995) 49 NSWLR 315

Cases Citing

Case NameFull CitationFrequency
Geary v State of Queensland (Queensland Health) [2024] QIRC 2503 citations
Malcolm v State of Queensland (Queensland Health) [2024] QIRC 972 citations
Simitsis v State of Queensland (Queensland Health) [2025] QIRC 572 citations
1

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