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  4. Harvey v State of Queensland (Queensland Health) - [2023] QIRC 295

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Harvey v State of Queensland (Queensland Health)[2023] QIRC 295

Harvey v State of Queensland (Queensland Health)[2023] QIRC 295

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Harvey v State of Queensland (Queensland Health) [2023] QIRC 295

PARTIES:

Harvey, Alistair John

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

TD/2021/23

PROCEEDING:

Application for reinstatement

DELIVERED ON:

13 October 2023

HEARING DATES:

11, 12, 13, 14 and 21 April 2022

MEMBER:

O'Connor VP

HEARD AT:

Brisbane

ORDER:

  1. The Application for reinstatement is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – TERMINATION – APPLICATION FOR REINSTATEMENT – MISCONDUCT – where applicant employed by respondent as senior security officer – where applicant struck a distressed patient with an expanding metal baton in waiting room of emergency department – where disciplinary process – where allegations substantiated – where finding that the use of the force was excessive – whether patient's conduct justified use of baton – whether use of baton was excessive – whether applicant's conduct contravened respondent's policies with respect to agitated patients and use of force – whether dismissal harsh, unjust or unreasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 316, s 317, s 318, s 320

Public Service Act 2008, s 187, s 188, s 189, s 190

Code of Conduct for the Queensland Public Service

CASES:

Costello v State of Queensland (Queensland Health, Queensland Ambulance Service) [2020] ICQ 3

Hickey v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service) [2020] ICQ 22

Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186

Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 195 ALR 502

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

The Australian Workers' Union of Employees Queensland v Gold Coast Hospital and Health Service [2020] QIRC 067

Wadey v YWCA Canberra [1996] IRCA 568

APPEARANCES:

Mr T. O'Brien, Counsel instructed by Susan Moriarty and Associates for the Applicant

Ms N. A-Khavari, Counsel instructed by Crown Law for the Respondent.

Reasons for Decision

  1. [1]
    Mr Alistair John Harvey ('the Applicant') was employed as a Senior Security Officer by the State of Queensland through Queensland Health ('the Respondent') as a Senior Security Officer at The Prince Charles Hospital ('TPCH') which is part of the Metro North Hospital and Health Service ('the Health Service').  The Applicant commenced employment with the Respondent on 10 July 2006.  In or about May 2009 the Applicant was appointed to the position of Senior Security Officer and held this position until the termination of his employment on 1 March 2021.

Background

  1. [2]
    At approximately 2.20 am on 27 January 2020, the Applicant responded to an incident involving a threatening and agitated patient ('the Patient') in the Emergency Department ('ED') waiting room of the TPCH.  Other patients were also in the waiting room at the time.  The Applicant, as the Senior Security Officer and Shift Supervisor, responded to the incident with two other Security Officers, Mr Maurus V and Mr Ken Williams.  Following a brief interaction, the Applicant struck the Patient on his left thigh three times with an extended metal baton, and this was followed by a physical restraint of the Patient by all three officers where the Patient was secured with handcuffs until the Queensland Police Service ('QPS') arrived.  The incident was recorded on CCTV footage and body worn camera ('BWC') footage.
  1. [3]
    As well as Mr V and Mr Williams, there were five other employees of the Respondent who were indirectly involved in or witnessed some or all of the incident and have provided evidence.
  1. [4]
    Immediately following the incident, the Applicant sent an email at 4.52 am on 27 January 2020 to Mr Scott Trudgett, Manager, Occupational Violence Prevention Services, the Health Service; Mr Brett Sell, Manager, Protective Services, the Health Service and Mr Glenn Rogers, Security Coordinator, TPCH with the subject 'Minor injuries during restraint'.
  1. [5]
    On 28 January 2020, Mr Trudgett commenced an informal review of the incident including the CCTC footage and the BWC footage to identify any concerns he considered necessary with the Applicant's line manager, Mr Rogers.
  1. [6]
    Upon reviewing the CCTV footage on 29 January 2020 Mr Rogers became concerned about the inappropriate use of a baton by the Applicant and advised Mr Sell in writing.  Mr Rogers met with the Applicant that afternoon and showed him the CCTV footage of the incident and asked him to explain what had occurred.[1]
  1. [7]
    On 30 January 2020 Mr Sell indicated to Mr Rogers and Mr Trudgett that he had viewed the CCTV and BWC footage and planned to refer the matter to the Health Service Integrity Unit.  On 6 February 2020 the Applicant was suspended on full pay.
  1. [8]
    An investigation into the conduct of the Applicant on 27 January 2020 was conducted by Mr Chris Bonner, Integrity Unit of the Health Service who provided an Investigation Report dated 24 June 2020.[2]
  1. [9]
    Following completion of this investigation Mr Peter King, Director Patient Services, the Health Service made the decision to commence a disciplinary process.

The Disciplinary Process

  1. [10]
    By letter dated 30 July 2020 from Mr King, the Applicant was directed to show cause why he should not be disciplined under ss 187 and 188 of the Public Service Act 2008 ('the PS Act') in respect of the following allegations:

 Allegation 1

It is alleged that on 27 January 2020, you engaged in misconduct when without reasonable justification, you struck a patient three times with an expanding metal baton in the waiting area of the Emergency Department of The Prince Charles Hospital.

  Allegation 2

It is alleged that on 27 January 2020, you failed to comply with policies and procedures of the Metro North Hospital and Health Service.

  Allegation 3

It is alleged that on 27 January 2020, you placed another staff member and patients are risk of harm when you facilitated a physical restraint in the waiting area of the ED, TPCH.[3]

  1. [11]
    The first show cause notice comprising the three allegations as outlined above against the Applicant was issued on 30 July 2020 ('First Show Cause Notice').[4]  The Applicant responded on 7 September 2020 ('First Show Cause Response').[5]
  1. [12]
    A second show cause was issued by Ms Janelle Peel, Acting Director Patient Services, the Health Service on 9 November 2020 ('Second Show Cause Notice') substantiating all three allegations against the Applicant and finding that he should be disciplined on the grounds of being found guilty of misconduct[6] as well as contravening without reasonable excuse the Code of Conduct for the Queensland Public Service ('Code of Conduct').[7]
  1. [13]
    The Applicant was asked to show cause in relation to the penalty of the termination of his employment.[8]  The Applicant responded to this letter on 27 November 2020 ('Second Show Cause Response').[9]
  1. [14]
    The Applicant was subsequently terminated by Mr Shaun Drummond, then Chief Executive of the Health Service by letter dated 26 February 2021 with immediate effect.[10]

Applicant's case

  1. [15]
    The Applicant submits that the dismissal was 'harsh, unjust and unreasonable'.  The pleadings advance four grounds in support of that contention which may be summarised as follows:
  1. lack of formal warning about his conduct;[11]
  2. decision makers' misunderstanding/misconstruing Applicant's response;[12]
  3. deficiencies in the investigation process;[13] and
  4. relevant contextual considerations.[14]
  1. [16]
    In his application for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), the Applicant seeks re-employment with the Respondent.  He states that throughout a significant period of his working life he has worked exclusively as a Security Officer with the Respondent and in related non‑Government areas.[15]  The Applicant further submits his termination on disciplinary grounds has limited his efforts to obtain alternative work.[16]

The relevant statutes and legal principles

The Industrial Relations Act 2016

  1. [17]
    Section 316 of the IR Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable.
  1. [18]
    Under s 317 of the IR Act, the onus rests on the Applicant to demonstrate on the balance of probabilities that his dismissal was unfair; that his dismissal was harsh, unjust and unreasonable.
  1. [19]
    In assessing an application under s 317, the Commission is both informed and constrained by s 320 of the IR Act which prescribes the circumstances which must be considered in such an assessment.
  1. [20]
    Sections 317 and 320 of the IR Act provide:
  1. 317
    Application for reinstatement
  1. (1)
    If it is claimed that an employee has been unfairly dismissed, an application for reinstatement may be made to the commission for the dismissal to be dealt with under this part.
  1. (2)
    The application must be made within -
  1. (a)
    21 days after the dismissal takes effect; or
  1. (b)
    if the commission allows a further period on an application made at any time - the further period.
  1. (3)
    An application may be made by -
  1. (a)
    an employee; or
  1. (b)
    with the employee's consent, an organisation whose rules entitle it to represent the employee's industrial interests.
  1. (4)
    The registrar may reject an application if the registrar considers the dismissed employee is a person mentioned in  section 315(1) as a person to whom section 316 does not apply.
  1. (5)
    If the registrar rejects the application, the registrar must, by written notice, notify the applicant -
  1. (a)
    that the application has been rejected; and
  1. (b)
    of the reasons why the registrar considers the dismissed employee is a person mentioned in section 315 (1) as a person to whom section 316 does not apply.
  1. (6)
    The applicant may, by written notice given within 21 days after the registrar's notice is received, inform the registrar that the applicant wishes the application to proceed.
  1. (7)
    If the applicant does so, the commission must deal with the application, despite the registrar's rejection.
  1. (8)
    The commission and registrar must deal with an application as quickly as possible.
  1. 320
    Matters to be considered in deciding an application
  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 or 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.

The Public Service Act 2008

  1. [21]
    The critical sections of Chapter 6 of the PS Act are ss 187, 188, 189 and 190.  The relevant parts of those sections are set out below.

Part 2 Disciplinary action

  1. 187
    Grounds for discipline
  1. (1)
    A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has -
  1. (a)
    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
  1. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or
  1. (ea)
    contravened, without reasonable excuse, a requirement of the chief executive under section 179A (1) in relation to the employee's appointment, secondment or employment by, in response to the requirement -
  1. (i)
    failing to disclose a serious disciplinary action; or
  1. (ii)
    giving false or misleading information; or
  1. (f)
    contravened, without reasonable excuse, a provision of this Act; or
  1. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. (2)
    A disciplinary ground arises when the act or omission constituting the ground is done or made.
  1. (3)
    Also, a chief executive may discipline, on the same grounds mentioned in subsection (1) -
  1. (a)
    a public service employee under section 187A; or
  1. (b)
    a former public service employee under section 188A.
  1. (4)
    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 public service.

Example of misconduct -

  1. victimising another public service employee in the course of the other employee's employment in the public service

relevant standard of conduct, for a public service employee, means -

  1. (a)
    a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  1. (b)
    a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.

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

  1. 188
    Disciplinary action that may be taken against a public service employee
  1. (1)
    In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

Examples of disciplinary action -

  • termination of employment
  • reduction of classification level and a consequential change of duties
  • transfer or redeployment to other public service employment
  • forfeiture or deferment of a remuneration increment or increase
  • reduction of remuneration level
  • imposition of a monetary penalty
  • if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments a reprimand
  1. …
  1. (5)
    In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
  1. (6)
    An order under subsection (1) is binding on anyone affected by it.
  1. …
  1. 189
    Suspension of public service employee liable to discipline
  1. The chief executive may suspend a public service employee from duty if the chief executive  reasonably believes the employee is liable to discipline under a disciplinary law.
  1. However, before suspending the employee, the chief executive must consider all alternative duties that may be available for the employee to perform.
  1. The chief executive may cancel the suspension at any time.
  1. 190
    Procedure for disciplinary action
  1. In disciplining a public service employee … or suspending a public service employee, a chief executive must comply with this Act, any relevant directive of the commission chief executive, and the principles of natural justice.
  1. However, natural justice is not required if the suspension is on normal remuneration.
  1. [22]
    Section 190 obliges the chief executive to comply with the principles of natural justice "in disciplining [the public servant employee]" or "in … suspending [the public servant employee]", although an exception exists if the suspension is on full pay.
  1. [23]
    Under s 187(1)(g) of the PS Act the Chief Executive may also discipline an employee if the Chief Executive is reasonably satisfied the employee has contravened a relevant standard of conduct.  The First Show Cause identifies the Applicant may have contravened s 187(1)(f) of the PS Act (as it then was), specifically Principle 1.5 and Principle 3.1 of the Code of Conduct.  The Second Show Cause confirms a breach of the new s 187(1)(g) of the PS Act as well as finding the Applicant guilty of misconduct under s 187(1)(b) of the PS Act.

The Code of Conduct

  1. [24]
    The Code of Conduct for the Queensland Public Service relevantly provides:

1.5 Demonstrate a high standard of workplace behaviour and personal conduct

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

We will:

  1. a.
    treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own
  1. b.
    ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment
  1. c.
    ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients
  1. d.
    ensure our private conduct maintains the integrity of the public service and our ability to perform our duties, and
  1. e.
    comply with legislative and/or policy obligations to report employee criminal charges and convictions.

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. a.
    accept that the elected government has the right to determine policy and priorities
  1. b.
    be responsive to the government of the day and implement decisions and policies professionally and impartially
  1. c.
    comply with the laws of State, Australian and local governments
  1. d.
    comply with all relevant awards, certified agreements, subsidiary agreements, directives, whole-of-government policies and standards, and
  1. e.
    adhere to the policies, organisational values and organisational documents of our employing agency.

Whether the Applicant engaged in the conduct as alleged in the three allegations and whether this constitutes misconduct and/or breach of the Code of Conduct.

  1. [25]
    Where the Applicant has been dismissed following a disciplinary process under the PS Act and the chief executive is 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.[17]
  1. [26]
    The questions to be decided by the Commission are as follows:

 a. whether the Applicant engaged in the conduct as alleged in all three allegations; and

 b. whether the Commission is 'reasonably satisfied' the Applicant has been guilty of misconduct within the meaning of s 187(1)(b) of the PS Act and/or in the alternative that the Applicant has contravened without reasonable excuse a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, pursuant to s 187(1)(g) of the PS Act, namely Principle 1 and Principle 3 of the Code of Conduct for the Queensland Public Service.

  1. [27]
    In order to answer the questions just posed, it is necessary to examine in a little more detail, the steps which were in fact taken in relation to the Applicant during the assessment phase and the formal disciplinary phase.  I turn now to the relevant event.

The Use of the Baton

  1. [28]
    What is contended by the Respondent is that the evidence before the Commission supports a conclusion that the Applicant deployed the baton without reasonable justification and in doing so was contradictory to relevant Health Service's policies and procedures.
  1. [29]
    The Applicant is aware of his responsibilities as a Senior Security Officer as outlined in his position description[18] and has completed substantial training with the Respondent[19] including training with respect to the Code of Conduct[20] and Occupational Violence Prevention (OVP).[21]
  1. [30]
    As the evidence unfolded, it was apparent that the Applicant was aware of the policies and procedures of the Health Service and their application to his position as a Senior Security Officer.  He was cognisant of the Personal Protective Devices - Safe Possession and Use Procedure[22] including that 'Security Officers must not remove the baton from their pouch except for the approved purpose of self-defence or aiding in defence of others who are or are about to be subjected to violent attack'.[23]
  1. [31]
    The Applicant's evidence was that he deployed his baton for two key reasons.   First, he was of a belief that a hostage situation may arise; and secondly, that he believed the Patient had a concealed weapon.
  1. [32]
    The potential for a hostage situation is said to have been the Applicant's 'biggest fear'.[24]  He said that his fears were heightened when he observed that the Patient's left arm appeared to move which the Applicant interpreted as an attempt to reach for another patient.
  1. [33]
    During the interview with Mr Bonner, the Applicant said that he took the action he did to prevent the incident escalating into a hostage situation.[25]  Although the background section of the Investigation Report does not include the Applicant's belief of the Patient reaching his arm towards another patient, it is relevant to note that the delegated decision‑maker, Deputy Director-General Mr Drummond (as he then was) agreed during cross-examination that this was a belief held by the Applicant and which contributed to his decision-making.
  1. [34]
    In his response to the first show cause letter on 7 September 2020, the Applicant referenced Mr Williams' shared belief of a potentially imminent hostage situation from his transcript of interview with Mr Bonner to support his position.[26]  The Applicant further referenced the nurse (identified in the redacted Bonner Report as 'witness 4' but now identified as Laurel Castleton) and the four other patients within close proximity to Mr Dobson as reasons for this belief.[27]  The Applicant reiterated this belief in his response to the second show cause letter on 27 November 2020, in which he maintained his view that Ms Castleton and members of the public were about to be the victim of a violent attack, or as grave, taken as hostages.[28]
  1. [35]
    In cross-examination, the Applicant was asked:

And who was the - who were you concerned about was going to be a hostage?---The person in the corner.  When I said to you - the angle I was on, his arm moved.  I thought that he was potentially going to be attempting to grab them.  As it turned out, his arm didn't go that way but, again, how long do you wait?  If I'd waited and he had grabbed that person, my only option was just to hands in the air and walk out of the room.[29]

  1. [36]
    Later in cross-examination, the Applicant was asked:

- - - can you try and describe that point?---There was two - I think there was two 30 people in that corner.  Yeah, because his - his left arm was so shielded from because of the angle he was standing that it appeared that his hand went away from his body and that is when I - that was when I did the, "Get down.  Get down".  You know, because I was just like, "No. You're not grabbing them."

But you have another - you have three officers in the room, do you not?---Yeah. Yeah.

He never spoke or gestured - I mean, you've indicated that you thought he gestured but he didn't actually gesture towards that person in the corner?---No.  As it turned out, no, and - - -

And - - -?--- - - - on the cameras when - - -

- - - he never spoke to that gentleman or lady and said - - -?---No.

Made any threat to them?---No.[30]

  1. [37]
    In the evidence before the Commission, the Applicant said, 'I also noticed something in the patient's back pocket which resembled the shape of a knife'.
  1. [38]
    In cross-examination, the Applicant was asked:

And this was a significant factor, was it, in your decision-making?---Yes.

Continuing:

From my experience, the longer you allow sporadic people to act, the more dangerous they become.  I was concerned as the patient was nearing the witness while still threatening to attack and had what appeared to be a knife in his back pocket.

?---Yes.

So you're telling the Commission that as you - in your decision-making processes, a significant factor was the fact that he had something in the shape of a knife in the back of his pants?---Well, that was one of the factors.  Yes.[31]

  1. [39]
    The incident report was completed by the Applicant approximately two hours after the ED incident.  The Applicant accepted in cross-examination that he did not mention a 'concealed weapon' nor did he make reference to his fear of a 'hostage situation' in the report.  Rather, the reason advanced for deploying his baton was recorded as: 'I drew my baton hoping this would deter his demands for a fight.'[32]
  1. [40]
    In an interview with Mr Glenn Rogers on 30 January 2020, the Applicant made no mention of the patient having a concealed weapon.  In cross-examination, the Applicant was asked:

So he didn't - you made no mention to him about the presence of a weapon down the back of the pants of the patient?---Not that I can recall, no.

Or a bulge that you saw?---Not that I can recall.

And that was two days after the incident?---Yes. Wednesday.[33]

  1. [41]
    The presence of a knife was said to be a significant factor in the Applicant's decision to deploy the baton.  In those circumstances, it seems inconceivable that such an important detail would have not been recorded in his incident report; mentioned to Mr Rogers during their discussion on 30 January 2020; raised during the investigation; or formed part of his responses during the disciplinary process.  The presence of a knife, as opposed to a bulge in the Patient's pants, was only raised as part of these proceedings.
  1. [42]
    During the investigation undertaken by Mr Bonner, the Applicant states that the Patient was making threats, reiterating that "he doesn't care who he hurts", where he saw him put his arm out to a lady in the comer, where the only thing going on in his head is that he was going to pull whatever is in the back of his pants and harm the lady or grab her for a hostage and that is why he drew his baton.[34]  He further states this is the interpretation he had from what he was saying that he was willing to harm anyone and everyone and he gestured at the lady.[35]
  1. [43]
    However, in cross-examination the following exchange occurred:

The patient never states - doesn't care who he hurts, does he?---I believe that was all part of my interpretation of his gesturing and his threats of swing - you know, getting a table and stuff.  So - - -

So he never says the words - - -?---No.  According to the transcript - - -

- - - out loud?--- - - - he doesn't.  So - - -

Never makes a direct threat for - against a patient?---No.

He's going to hurt somebody.  Doesn't care who he hurts.  These words were never said by him?---Apparently not, no.

The only statement that he made is, "If you fucking point at me, I'll fucking come out swinging". That's the only statement that he made, is it not?---Appears to be, yes.

And the only other verbal threat during the entire interaction, Mr Harvey, I put to you was, "Come on, boys.  Let's go, cunt.  Let's fucking go"?---Yeah, which, again, indicated he was more than willing to - - -

So there are only two verbal - - -? ---Yes.

- - - threats made by the patient during - - -?---Correct.

- - - that interaction? ---Correct.

And that was two verbal threats with no direct threat towards a patient, no weapon in his hand and you've elected to deploy your baton? ---Correct. [36]

  1. [44]
    The Personal Protective Devices - Safe Possession and Use Procedure[37] relevantly states that "Security Officers must not remove the baton from their pouch except for the approved purpose of self-defence or aiding in defence of others who are or are about to be subjected to violent attack".
  1. [45]
    It is apparent from the evidence that the Applicant was aware of and understood the concept of a dynamic risk assessment, which required an ongoing assessment of circumstances relating to an incident as it progresses;[38] has undergone significant training in his career with the Respondent;[39] has undertaken training with respect to the Code of Conduct for Queensland Public Service[40] and OVP training.[41]
  1. [46]
    It is clear from the evidence before the Commission that prior to attending the ED waiting room at TPCH on 27 January 2020, the Applicant was familiar with the layout of the ED[42]; was aware there is only one way in and one way out;  was aware the triage area where staff were located is separated from the waiting room by a sheet of glass and was aware that there were other patients in the ED waiting room including a patient lying unconscious across the chairs.[43]
  1. [47]
    The above evidence is not consistent with the evidence given by the Applicant during the investigation that he walked into the incident 'blind'.[44]
  1. [48]
    The Respondent contends that the Applicant failed to take into account the impact of his positioning in the ED on any attempts to de-escalate the situation.  The decision of the Applicant to follow the Patient down the left side of the ED waiting room created a situation where the Patient had no viable option of egress or exit.  Equally, the Applicant made no attempts to reposition himself to rectify this situation and gave no directions to either Mr V or Mr Williams to re-position themselves.
  1. [49]
    In cross-examination, the Applicant was asked:

You're a senior officer in that position.  If you see that a patient is trapped and can't get out, is it not your responsibility to take the lead in that situation, to - and when I say take the lead, to communicate, to say words to your other officers? ---Yeah, I accept that.  Yeah.

Especially where you have those concerns that you're about to trap a patient, the patient here? ---Yeah, I – yeah, I believe it would be normal practice.[45]

  1. [50]
    In attending the incident, the Applicant was required to assess the situation and take action to reduce the risk of harm to staff and other patients.  He made no efforts to get other patients out of the room;[46] did not ask a member of staff to evacuate the room;[47] nor did not ask another security officer to evacuate the room.[48]  At the time of deploying the baton the Applicant placed staff and other patients at risk.
  1. [51]
    Ms Castleton's affidavit evidence was that:

When Mr Harvey took out his baton and struck the patient, it startled me and I was getting frightened that I was going to get injured.

…

I realised I could not remain in the vicinity as I was at risk of being hit accidentally with the baton.[49]

  1. [52]
    In her oral evidence before the Commission, Ms Castleton said that she was fearful of getting injured.  She said "…when you're in a confined space, anything can happen".[50]
  1. [53]
    The Respondent submits that after arriving in the ED there was time and opportunity for the Applicant to consider the options available to him to de-escalate the behaviour of the Patient in accordance with his OVP training and to reduce risk to those present.[51]
  1. [54]
    The Applicant in evidence said that usually a Security Supervisor such as himself would engage in de-escalation unless another security officer has already built rapport with the patient.[52]  Upon entering the ED as Mr V had already began attempting de-escalation, the Applicant allowed him to continue and not engage himself with the Patient in accordance with standard practice.
  1. [55]
    During cross-examination the Applicant said:

So I put it to you that you made no efforts to de-escalate that situation before you deployed your baton? --- That would appear so.[53]

  1. [56]
    In further cross-examination about the situation before deploying the baton, the Applicant said:

 I also put to you that there was a lack of motivation by the patient to physically engage with you during that incident?---Well, that's an opinion you have, but my actions - well, my actions were based on what I - I was looking at.  So I - I feared he - he did have - well, motivation, or he was about to - - -

And - - -?--- - - - attack someone.

You're aware that verbal threats alone are not enough to deploy your baton? --- Are they not?

I'm asking you the question.  That's something that you know.  That a verbal threat alone is not enough of a reason to deploy your baton? --- I've never really actually considered that.

Well, there's no - a verbal threat alone is not going to be enough for an imminent threat of physical violence, is it? --- Well ---

You'd need to see something in conjunction with that? --- Yes, I suppose.

I suggest to you that your use of force on this occasion was not authorised, justified, reasonable or appropriate? --- At the time, I thought it was.

I'm putting that to you now.  That your use of force was not authorised, justified, reasonable or appropriate? --- You want me to answer in hindsight?  In hindsight, I would more likely agree with you than not, but at the time, I can only go with what I was thinking at the time and seeing.  And at the time, I thought it was.

I suggest to you that you engaged in multiple baton strikes against a patient who was unarmed? ---It would appear so, yes.  Three strikes.[54]

  1. [57]
    The conduct of the Patient did not warrant physical intervention within such a short time of security arriving in the ED, being a period of 34 seconds, without considering alternative de-escalation options.[55]
  1. [58]
    I accept the argument that much of the Applicant's evidence refers to the behaviour of the Patient during the brief interaction and does not address the concerns of the Respondent in respect of the Applicant's failure to consider de-escalation strategies before deploying his baton.[56]
  1. [59]
    What can be gleaned from the evidence is that at the time of the deployment of the baton, the patient's hand was by his side; whilst he made verbal threats, he made no attempt to act on the verbal threats or to advance on any of the security personal or others in the ED; he sought to retreat from the advancing security officers.  Moreover, there is nothing in the evidence before the Commission to suggest that the patient made any attempt prior to the deployment of the baton to reach for a 'concealed weapon' or indeed, any weapon.
  1. [60]
    I accept the argument that the Applicant's conduct cannot be 'characterised as an error of judgment, an innocent mistake or mere negligence'.[57]  The Applicant's conduct was a departure from established training and inconsistent with the required policies and procedures of his employer.  The evidence before the Commission supports the conclusion that the Applicant's conduct was serious and justifies a conclusion that his actions amounted to misconduct under s 187(1)(b) of the PS Act.
  1. [61]
    On the evidence, I am satisfied that the Allegations which led to the Applicant's dismissal are able to be substantiated.

Matters to be considered - Section 320 IR Act

  1. [62]
    In assessing an application under s 317, the Commission is both informed and constrained by s 320 of the IR Act which prescribes the circumstances which must be considered in such an assessment.

Was the Applicant warned about his conduct?

  1. [63]
    A necessary consideration in determining whether a dismissal was unfair, is whether the conduct was committed in defiance of an earlier direction, or conversely, whether the employee had not previously been placed on notice as to the unacceptability of the conduct.  Section 320(c) requires such a consideration.  The "warning" referred to in s 320(c)(i) is a warning given prior to the conduct which was the basis of the dismissal.[58]
  1. [64]
    The Applicant submits prior to his suspension he was not provided with formal warning about his conduct nor was he provided with formal warning during the incident that his conduct was being investigated.
  1. [65]
    In the suspension letter of 6 February 2020, the Applicant received no warning on the basis that the decision maker:

... reasonably believe (d) the proper and efficient management of the department might be prejudiced and as such, it would not be appropriate for you (the Applicant) to remain in the workplace due to the concerns I (the decision-maker) have about your alleged conduct.[59]

  1. [66]
    It is not in contention that the Applicant was not warned about his conduct, prior to his dismissal.
  1. [67]
    In my view, given the nature of the conduct and the Applicant's seniority, the fact that he was not warned about his conduct the subject of the allegations prior to his dismissal, is not a fact that can or should materially contribute to a finding that his dismissal was unfair.
  1. [68]
    As set out in these reasons, I have formed this view having regard to Allegations One to Three, the Applicant's conduct was so inconsistent with his training and obligations under the Health Services' policies and procedures that the termination of his employment was justified without any warning.

Was the Applicant given an opportunity to respond?

  1. [69]
    In Wadey v YWCA Canberra[60] Moore J said "… the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance".  So far as this issue is concerned there is no relevant difference between an "opportunity to respond", and an "opportunity to defend".[61]

 Disciplinary and show cause process

  1. [70]
    The Applicant was suspended on 6 February 2020 and remained suspended on full remuneration until the termination of his employment.  An investigation was conducted by Mr Bonner in a considered and procedurally fair manner.  The Investigation Report into Allegations of suspected Excessive Use of Force by the Applicant was provided to Mr King on 24 June 2020.[62]  After considering the Investigation Report and viewing the CCTV and BWC footage, Mr King determined there was sufficient evidence to commence a disciplinary process.
  1. [71]
    On 30 July 2020 Mr King issued the First Show Cause Notice setting out the allegations.
  1. [72]
    Annexed to the First Show Cause letter included: emails about the incident; CCTV screen shots; transcript of body cameras; transcripts of interviews with the Applicant, and the four witnesses interviewed as part of the investigation; training records; MNHHS Legal Principles; the Aggressive Behaviour Management for Health Care Workers Module;[63] and the Investigation Report.
  1. [73]
    The Applicant provided his response to the First Show Cause Letter on 7 September 2020, after being given an extension of time.
  1. [74]
    The Second Show Cause Notice was issued by Ms Peel, as the appropriate delegate, on 9 November 2020 where she considered the Applicant's First Show Cause Response including:
  1. a.
    the nurse asking the patients to move back does not diminish his responsibility to relocate patients and staff if necessary;
  1. b.
    the only potential weapon was the chair, where putting the chair down was a sign of de‑escalation;
  1. c.
    on viewing the CCTV footage there is no clear evidence of violent attack occurring or likely to occur;
  1. d.
    a detailed consideration of each strike and what was occurring, where after the first strike the Patient was displaying passive resistance, where there is no evidence that the 'patient kept coming' justifying multiple strikes, and was contrary to training, the 'dynamic risk assessment' (step back and assess);
  1. e.
    the CCTV supports no indication of hostage situation arising or imminent threat of violent attack, ... and this is not a reasonable justification for use of the baton;
  1. f.
    the actions of the Applicant reduced the ability of the security team to conduct a coordinated restraint and decrease the safety of other people in the ED;
  1. g.
    guidance from the Criminal Code 1899 (Qld); and
  1. h.
    the decision to use the baton was not reasonable, appropriate or authorised, where there was a sufficient number of security officers to conduct a tactical withdrawal of all at risk persons from the at-risk environment or a physical restraint of the Patient, if required, and safe to do so, and would be consistent with the health care intervention model. ...[64]
  1. [75]
    Ms Peel then substantiated each of the allegations, on the balance of probabilities and proposed the disciplinary penalty of termination of employment.  The Applicant provided his Second Show Cause Response on 27 November 2020.
  1. [76]
    The Applicant was given an opportunity to respond to the conduct during the show cause process.  In this regard, he was provided with an opportunity to respond to the show cause notice and the show cause on penalty notice. The Applicant's responses were considered and referred to in the decision on disciplinary findings and the decision to terminate the Applicant's employment made by Mr Drummond.  Consequently, the Applicant was given an opportunity to respond to the allegations and the proposed disciplinary action.

 Termination of Employment

  1. [77]
    As set out in the letter of 26 February 2021, Mr Drummond formed the view that the appropriate penalty was that the Applicant's employment ought to be terminated.
  1. [78]
    Mr Drummond considered all the matters and the seriousness of the substantiated allegations together with the Applicant's overall unblemished work record as well as his length of service and his training, his responses, the health and safety risks to patients and staff and the impact the substantiated allegations have on the public and clients in the Health Service.  He further considered the personal impact on the Applicant and whether a lesser penalty should be imposed.[65]
  1. [79]
    In his affidavit, Mr Drummond outlines the reasons for terminating the Applicant:
  1. In determining that termination of Mr Harvey's employment was the appropriate penalty, I specifically gave consideration to the following:

 a. the seriousness of the substantiated allegations;

  b. the actions of the patient were typical of regular interactions where security is called to assist in circumstances where the catchment for the Hospital is a low socio‑economic area with high rates of chronic disease including mental health, unemployment and scepticism of the public health system;

  c. Mr Harvey's overall work record, which I note was unblemished;

  d. Mr Harvey's tenure and training record, noting he had been specifically trained for these types of situations;

  e. the explanations provided by Mr Harvey;

  f. any extenuating circumstances put forward by Mr Harvey which may have had a bearing on Mr Harvey's actions;

  g. the impact the substantiated allegations have on Mr Harvey's ability to perform the duties of his position;

  h. the degree of risk to the health and safety of patients and staff;

  i.  MNHHS's duty to ensure the health and safety of its patients; and

  j. the impact the substantiated allegations have on public and client confidence in MNHHS and by association Queensland Health.

  1. I was very aware that in terminating a person's employment, I am depriving them of their livelihood.  It is not a decision I take lightly.  Consequently, I was very conscious that termination would have a great financial impact on Mr Harvey, especially as he was an employee on a moderate income in an area of relatively high unemployment.  However, I judged this impact to be no different from any other employee.
  1. I considered whether I should make a different decision as I am able to take a range of disciplinary actions including not taking any disciplinary action at all.  In the past, I have referred matters back to the Workplace Advisory Unit (WAU) for redrafting if I was not satisfied the proposed outcome was the most appropriate disciplinary penalty.  For example, I have referred matters back when termination was proposed, but having reviewed the material I was not satisfied that employee should be terminated.
  1. However, having read the material and considered the matter in relation to Mr Harvey very carefully, I formed the view that termination was the most appropriate penalty.[66]
  1. [80]
    The nature of the other allegations concern not only the impact of his conduct on the Patient but also concerned the safety of other persons in the ED waiting room, which in my view, added another level of seriousness.  The Applicant did not comply with his training and required procedures and identified a more appropriate way to manage the situation when interviewed during the investigation[67] and in his evidence.[68]
  1. [81]
    In cross-examination, Mr Drummond said:

You'd agree with me, wouldn't you, that you have judged Alistair on a decision that he made in that heat of the moment environment you've just described?  That's right, isn't it? --- So the point that I would actually make is I've made the judgment around whether I believe that there were alternatives that should have actually occurred and a de-escalation should have occurred.  That is actually part of the training, part of the expectation.  And so while we have an obligation to provide safety for staff, we've actually got an equal obligation to provide safety to our patients and that - and that they are not subsequently adversely affected in a - in a psychological sense from actually presenting for the care that they actually need.  And that's a dual responsibility for us.[69]

  1. [82]
    The Respondent submits the termination of the Applicant's employment was not harsh, unjust or unreasonable and the application should be dismissed.
  1. [83]
    The Applicant claims there are contextual considerations relevant to the reasons why the dismissal was harsh, unjust and unreasonable.  These are that the Patient had:

 a. previously come to the attention of hospital staff due to his repeatedly hostile and aggressive behaviour;

 b. been seeking treatment with the Respondent for his mental health;

 c. a history of 'using threats and aggression' towards staff;

 d. 'aggravated on numerous occasions the security guards';

 e. been described as 'a very difficult patient'; and

 f. on many occasions 'threatened violence'.[70]

  1. [84]
    The Respondent submits the only information about the Patient which is relevant to these proceedings is what the Applicant knew at the time of his interaction on 27 January 2020 and I accept that no weight should be placed on the Applicant's submissions as to what other witnesses knew about the Patient.
  1. [85]
    Despite the Applicant seeking reinstatement, the Respondent submits that redeployment and reinstatement are impractical where there needs to be sufficient trust to make the relationship viable and productive.[71]
  1. [86]
    Mr Drummond's evidence was that he had lost trust and confidence in the Applicant's capacity to act appropriately in the position if he was reinstated or redeployed as he would be required to deal with aggressive or agitated patients where the core purpose of his role is to provide support to clinical staff when they are faced with patient aggression.  Also, the Applicant showed no remorse for his actions.[72]
  1. [87]
    Mr Drummond formed the view that the termination of Mr Harvey's employment was the appropriate disciplinary action.  For the reasons advanced elsewhere, there was a basis for him to do so.

Other matters the Commission considers relevant

Deficiencies in the investigation process

  1. [88]
    The Applicant makes submissions with respect to what is broadly described as deficiencies in the investigation process. 
  1. [89]
    The Applicant claims that despite being a longstanding Health Service employee, the Respondent failed to provide him with the basic principles of natural justice and procedural fairness with an opportunity to formally respond to the allegations prior to the disciplinary proceedings and the commencement of his suspension as well as enforcing dismissal by way of disciplinary penalty when it was manifestly excessive.[73]
  1. [90]
    In Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam,[74] Gleeson CJ in discussing the way that procedural fairness cases are approached by the Courts wrote the following:

Fairness is not an abstract concept.  It is essentially practical.  Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[75]

  1. [91]
    Whilst the Applicant concedes that he was afforded an opportunity to respond through the first and second show cause letters,[76] he contends that the decision makers misunderstood the evidence which the Applicant gave during his response.  Specifically, the Applicant contends:
  1. a.
    the chief executive took into account an irrelevant consideration, being that the Patient was 'making verbal threats of violence alone', when in fact, the Patient had only moments earlier been threatening staff by holding a chair above his head, indicating he would throw the chair at them; and
  1. b.
    the CCTV footage depicts the Applicant attempting to isolate the Patient, and it was in fact his two colleagues who cornered the Patient, putting the witnesses and staff at risk.[77]
  1. [92]
    What is contended by the Applicant is, in truth, no more than an objection to the decision maker taking a particular view in respect of the evidence.  On the evidence, it was open to the decision maker to conclude that the Patient was making only verbal threats of violence.  Equally, it was open to the decision maker to conclude from the CCTV footage that the Applicant created a situation where the Patient had no viable option of egress or exit and no attempts were made by the Applicant to reposition himself to rectify this situation.
  1. [93]
    The Applicant submits that the termination of his employment was unfair because Mr Brett Sell, the Manager of Protective Services with the Health Service had an involvement throughout the disciplinary process including the Second Show Cause Notice through Mr King, Ms Peel and Ms Megan Quinn.
  1. [94]
    On 30 January 2020, Mr Sell sent an email to Mr Rogers and Mr Trudgett, indicating that he had the opportunity to view the CCTV and BWC footage, and planned to refer the ED matter to the MNHHS Integrity Unit.  In his email he states:

I will go ahead and formalise a referral to MN Integrity Unit on the grounds that I suspect Alistair Harvey has committed an unprovoked assault using excessive force, more specifically I suspect him of committing an offence of Assault Occasioning Bodily Harm Whilst Armed ...

With the information available thus far, I must admit I am at a loss as to why this occurred and see nil justification for the use of the baton.  Officers are afforded the use of the baton as Personal Protective Equipment to be used as a last resort for self defence purposes.[78]

  1. [95]
    The gravamen of the Applicant's submission appears to be the assertion that Mr Sell as the 'complainant', should never have taken a 'stakeholder position' in the disciplinary process.  He was, it was argued, both complainant and judge.
  1. [96]
    It is further contended that Mr Sell was a consultant to Mr Drummond on whether to terminate the Applicant's employment.[79]  This was, it was argued, a serious breach of natural justice shown to the Applicant and damaged the Applicant's right to a fair investigation.
  1. [97]
    The Applicant's submissions cannot be accepted.
  1. [98]
    Mr Sell was the Manager of MNHHS Protective Services and in that capacity escalated the matter to the Integrity Unit; he did not undertake the investigation; he was not a witness to the ED incident; nor was he a decision maker in relation to the Allegations. 
  1. [99]
    Mr Drummond did not consult with or speak to Mr Sell prior to making his decision to terminate the Applicant's employment.  Mr Drummond's evidence was:

It's not a criticism.  Now, who is Mr Sell?--- So he is the head of security services that reports to Peter King's role.

So Mr Sell would be four reporting lines below you?---Yes.

Now, they both recommended to you that Alistair be sacked, didn't they?--- So the - the recommendation that came to me was from the Acting Executive Director, so the person in Gillian's role.

But you would have consulted with Mr King and Mr Sell, wouldn't you?---No, I don't.  You didn't speak to them at all?--- So I – I don't investigate the investigation unless I have particular concerns or questions of an action that somebody may have actually taken during the - - -

I see.  So your decision was based entirely on the material that was provided with the brief for approval.  Have I got that right?---Yes.

You didn't talk to anyone about it?---No.

You didn't consult with anybody?--- So as is the normal course with these matters, I will thoroughly read all of the information and then I will note any questions that I have that I don't believe have been answered and, at that point in time, I will ask to actually meet with the individuals concerned to see whether it's not in the material but has actually been asked and - at that point in time.  In this, I believe there was a significant body of evidence and correspondence and I am pretty OCD around reading all written material given to me.[80]

  1. [100]
    It was submitted by the Applicant that Mr Trudgett as a 'protected discloser' should not have acquiesced in Ms Peel's request for assistance for reasons we have already outlined in these submissions.
  1. [101]
    Ms Peel based her decision on proposing termination of employment "after personally viewing the CCTV and BWC footage and consulting with Mr Trudgett ... who is a subject matter expert in violence prevention strategies" and concluded "there were other measures that would have been more appropriate to deploy in response .... including a tactical withdrawal".[81]
  1. [102]
    In her affidavit, Ms Peel deposes:
  1. As I had only been employed by MNHHS for a short period of time, I consulted various people to ensure I was following the correct procedure and policies of MNHHS and taking into consideration appropriate matters in reaching my determination.  I recall I consulted with Mr Sell, Ms Quinn and Mr Scott Trudgett, Manager, Occupational Violence Prevention Services, MNHHS.  My discussions were mainly to confirm my interpretation of terminology and/or training techniques of protective services staff.  I did not keep notes of these discussions.
  1. I recall reading and considering Mr Harvey's response to the First Show Cause Notice.  However, after personally viewing the CCTV and Body Worn Camera (BWC) footage and consulting with Mr Trudgett, who is a subject matter expert in violence prevention strategies, I considered it was more likely than not that Mr Harvey's use of force was unjustified and unreasonable in the circumstances.[82]
  1. [103]
    In short, Ms Peel's evidence before the Commission was that after viewing the CCTV and BWC footage and considering all the relevant material, she substantiated each of the allegations on the balance of probabilities, and formed the view that the Applicant's use of force was not justified nor reasonable.[83]  Having come to that conclusion, Ms Peel found that the Applicant should be disciplined on the grounds under s 187(1)(b) of the PS Act.
  1. [104]
    Further, Ms Peel concluded that the Applicant had contravened without reasonable excuse a relevant standard of conduct in a way that was sufficiently serious to warrant disciplinary action.  As a consequence of her findings, Ms Peel proposed the disciplinary penalty of termination of employment, and the Applicant was afforded an opportunity to respond in relation to that penalty.
  1. [105]
    Ms Peel's reasons in coming to that conclusion included that the only potential 'weapon' within the ED environment was the chair.  However, in putting the chair down, the Patient was de-escalating the situation.  She concluded that there was no clear evidence of a violent attack occurring or likely to occur.  As part of her analysis, Ms Peel determined the patient was displaying passive resistance; there is no evidence that the Patient kept coming to justify multiple strikes. She considered that the Applicant's conduct was contrary to his training in terms of dynamic risk assessment, which is to step back and to assess matters that were considered yesterday.
  1. [106]
    The CCTV footage supports the conclusion that there was no indication of a hostage situation, or an imminent threat of a violent attack. Whilst there where verbal threats, this alone did not justify the use of a baton.  Ms Peel determined that the actions of the Applicant reduced the ability of the security team to conduct a coordinated restraint and, in turn, decreased the safety of other people in the ED.  She concluded that the decision to use the baton was not reasonable, appropriate, or authorised, particularly in circumstances where there was a sufficient number of security officers to conduct a tactical withdrawal of all people at risk in the environment or undertake a physical restraint of the Patient if required, and safe to do so.  Such an approach was consistent with the healthcare intervention model.
  1. [107]
    It was, in my view, appropriate for Ms Peel to consult with Mr Trudgett.  He was, after all, the Manager, Occupational Violence Prevention Services with the Health Service and given that position and his expertise in training it was unremarkable that his advice was sought.  Mr Trudgett's 'protected disclosure status' did not prevent him from assisting Ms Peel nor did it preclude Ms Peel from seeking his advice.  Further, neither Mr Trudgett nor Ms Peel were cross-examined on the issue.

Conclusion

  1. [108]
    The issue for determination is whether the Applicant's dismissal from his position as a Senior Security Officer at MNHHB was harsh, unjust, or unreasonable within the meaning of s 316 of the IR Act.
  1. [109]
    The Applicant was dismissed because the Respondent was reasonably satisfied that, in respect of Allegations One to Three, he had engaged in misconduct within the meaning of s 187(1)(b) of the PS Act.
  1. [110]
    I am satisfied based on the evidence before the Commission that the Applicant engaged in the conduct the subject of Allegations One to Three and as particularised in the Show Cause letters. 
  1. [111]
    On the basis of my finding in relation to Allegations One to Three, I have determined that pursuant to s 187(1)(b) of the PS Act, the Applicant is guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a) of the PS Act.
  1. [112]
    The evidence before the Commission supports a conclusion that the dismissal process was procedurally fair.
  1. [113]
    The Applicant did not meet the relevant requirements, imposed upon him as an employee in accordance with the standards expected of him by the MNHHS, in respect of Allegations One to Three.  For those reasons, his dismissal was proportionate to his misconduct.
  1. [114]
    The decision to terminate the Applicant's employment is ultimately a decision of the Respondent.  Any intervention by the Commission will only be justified if it was decided on inferences which could not reasonably have been drawn from the material before the employer:

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, be held immune from interference by the Commission.[84]

  1. [115]
    Having regard to the factors that the Commission must consider in s 320 of the IR Act, the case advanced by the Applicant has failed to discharge the onus of establishing that the dismissal was harsh, unjust or unreasonable.  It was not, therefore, unfair.
  1. [116]
    In light of the above conclusions, I have formed the view that the application for reinstatement ought to be dismissed.

Orders

  1. The Application for reinstatement is dismissed.

Footnotes

[1] Exhibit 1, Tab 11, Affidavit of Glenn Rogers filed 22 December 2021, [15].

[2] Exhibit 1, Tab 19, pp 155-173.

[3]Application for Reinstatement filed 18 March 2021, Annexure A, AH-03.

[4] Exhibit 1, Tab 39, pp 668-675.

[5] Exhibit 1, Tab 40, pp 693-709.

[6] S 187(1)(b) of the PS Act.

[7] S 187(1)(g) of the PS Act.

[8] Exhibit 1, Tab 41, pp 715-721.

[9] Ibid, Tab 42, pp 723-736.

[10] Exhibit 1, Tab 45, pp 741-744.

[11]Application for reinstatement filed 18 March 2021, Annexure A [19]-[21].

[12]Ibid [23]-[24].

[13] Ibid, [25]-[27].

[14] Ibid, [28]-[31].

[15] Ibid, [32]-[33], [35].

[16] Applicant's submissions filed 27 May 2022, [174].

[17] The Australian Workers' Union of Employees Queensland v Gold Coast Hospital and Health Service [2020] QIRC 067, [43].

[18] Exhibit 1, Tab 89.

[19] Ibid, Tab 65.

[20] TR1-110, L38 and L41.

[21] TR2-6, L19; Exhibit 1, Tabs 66, 67, 69 and 71; Exhibit 3; Exhibit 4.

[22] Exhibit 1, Tab 60, pp 785-793.

[23] Exhibit 1, Tab 40, p 705 - referenced by the Applicant in the First Show Cause Response where he states he is very conscious of the policies and procedures he is required to follow.

[24] TR2-54, L17.

[25] Applicant's submissions filed 27 May 2022, [120].

[26] Exhibit 1, Tab 40, p 701.

[27] Exhibit 1, Tab 40, p 703.

[28] Exhibit 1, Tab 42, p 732.

[29] TR2-53, LL19-34.

[30] TR2-54, LL30-46.

[31] TR2-56, LL34-47.

[32] Exhibit 1, Tab 46, p 746, Email from Mr Harvey to Mr Rogers, Mr Sell and Mr Trudgett, dated 27 January 2020, sent at 4:52 am.

[33] TR2-83, LL28-33.

[34] Exhibit 1, Tab 19, p 325, L218; p 326, LL230-234.

[35] Exhibit 1, Tab 19, p 328, L262.

[36] TR2-52, LL34-45, TR2-53, LL1-16.

[37] Exhibit 1, Tab 60, p 785-793.

[38] TR2-26, LL30-46.

[39] Exhibit 1, Tab 65.

[40] TRl-110, LL38-41.

[41] TR2-6, L19; Exhibit 1, Tab 66; Tab 67; Tab 69; Tab 71; Exhibit 3; Exhibit 4.

[42] TRl-114, L4.

[43] TR1-114, L4, L7; TR1-116, L19;  TR1-118, L33.

[44] Exhibit 1, Tab 24, p 578, L468.

[45] TR2-49, LL6-12.

[46] TR2-82, L1; Exhibit 1, Tab 13, [13].

[47] TR2-81, L45.

[48] TR2-81, L42.

[49] TR3-95, LL9-17.

[50] TR3-95, LL21-22.

[51] Respondent's submissions filed 17 June 2022, [57].

[52] TR1-109, LL29-31.

[53] TR2-83, LL35-36.

[54] TR2-83, L38-TR2-84, L19.

[55] TR2-80, L34.

[56] Respondent's submissions filed 17 June 2022, [61], [62].

[57] Respondent's submissions filed 17 June 2022, [98].

[58] Hickey v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service) [2020] ICQ 22, [18].

[59] Ibid, [20].

[60] [1996] IRCA 568.

[61] Costello v State of Queensland (Queensland Health, Queensland Ambulance Service) [2020] ICQ 3.

[62] TR4-48, L18; TR4-52, LL29-30; TR4-54, L1O; TR4-58, LL29-34.

[63] Exhibit 1, Tab 39, p 670, (First Show Cause Notice).

[64] Respondent's submissions filed 17 June 2022, [123].

[65] Exhibit 1, Tab 7, Affidavit Shaun Patrick Colin Drummond, [34]-[36].

[66] Exhibit 1, Tab 7, Affidavit of Shaun Patrick Colin Drummond.

[67] Exhibit 1, Tab 24, p 576, L449-p 578, L470.

[68] TR2-80, LL37-44.

[69] TR5-9, LL35-44.

[70] Applicant's submissions filed 27 May 2022, [28]-[29].

[71] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191-192.

[72] Exhibit 1, Tab 7, Affidavit Shaun Drummond filed 22 December 2021, p 52.

[73] Application for Reinstatement filed 18 March 2021, Annexure A, [25].

[74] (2003) 195 ALR 502. 

[75] Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 195 ALR 502, [37]. 

[76] Application for Reinstatement filed 18 March 2021, Annexure A, [23].

[77] Ibid, [24].

[78] Exhibit 1, Tab 51, p 756.

[79] Applicant's submissions filed 27 May 2022, [120].

[80] TR5-6, LL23-47; TR5-7, LL1-3.

[81] Exhibit 1, Tab 9, p 73, [27].

[82] Exhibit 1, Tab 9, p 70, Affidavit Janelle Peel.

[83] Exhibit 1, Tab 9, p 70, Affidavit Janelle Peel, [26].

[84] Stark v P & O Resorts (Heron Island) (1993) 144 QGIG 914, [915].

Close

Editorial Notes

  • Published Case Name:

    Harvey v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Harvey v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 295

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    13 Oct 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
Costello v State of Queensland (Department of Health, Queensland Ambulance Service) [2020] ICQ 3
2 citations
Jump To
Cite 1 - [2020] ICQ 3
Cite 2 - [2020] ICQ 3
Hickey v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service) [2020] ICQ 22
2 citations
Jump To
Cite 1 - [2020] ICQ 22
Cite 2 - [2020] ICQ 22
Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502
3 citations
Jump To
Cite 1 - (2003) 195 ALR 502
Cite 2 - (2003) 195 ALR 502
Cite 3 - (2003) 195 ALR 502
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
2 citations
Jump To
Cite 1 - (1997) 72 IR 186
Cite 2 - (1997) 72 IR 186
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
The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 67
2 citations
Jump To
Cite 1 - [2020] QIRC 67
Cite 2 - [2020] QIRC 67
Wadey v YMCA Canberra [1996] IRCA 568
2 citations
Jump To
Cite 1 - [1996] IRCA 568
Cite 2 - [1996] IRCA 568

Cases Citing

Case NameFull CitationFrequency
Harvey v State of Queensland (Queensland Health) [2024] ICQ 103 citations
1

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