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Fisher v Queensland Ambulance Service[2023] QIRC 39

Fisher v Queensland Ambulance Service[2023] QIRC 39

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Fisher v Queensland Ambulance Service [2023] QIRC 039

PARTIES:

Fisher, Michael Craig

(Appellant)

v

Queensland Ambulance Service

(Respondent)

CASE NO:

PSA/2022/988

PROCEEDING:

Public Service Appeal – Fair treatment decision

DELIVERED ON:

10 February 2023

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with the following decision:

  1. That Allegation One is not substantiated.
  2. That Allegation Two is substantiated.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – disciplinary decision – where appellant alleged to have inappropriately used force against a patient – where appellant alleged to have inappropriately caused injury to a patient – where two allegations substantiated – where disciplinary action proposed – whether disciplinary finding was fair and reasonable

LEGISLATION & OTHER INSTRUMENTS:

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

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564, s 567

Public Service Act 2008 (Qld) s 194

Code of Conduct for the Queensland Public Service s 1.5

CASES:

Briginshaw v Briginshaw (1938) 60 CLR 336

Gilmour v Waddell & Ors [2019] QSC 170

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

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Reasons for Decision

  1. [1]
    Mr Michael Fisher (the Appellant) is employed as an Advanced Care Paramedic with the Queensland Ambulance Service (QAS; the Respondent).
  1. [2]
    In correspondence dated 6 June 2022, the Respondent invited the Appellant to show cause as to why disciplinary findings should not be made against him in relation to the following allegations:

Allegation 1

It is alleged that at approximately 12:58:07 on 1 July 2021 at TUH, you inappropriately used force by taking hold of a female patient's wrist.

Allegation 2

It is alleged that at approximately 12:58:09 on 1 July 2021 at TUH, you inappropriately caused injury to a female patient by striking her in the face with your closed fist.

  1. [3]
    In correspondence dated 20 June 2022, the United Workers Union provided a response to the Respondent on behalf of the Appellant.
  1. [4]
    In correspondence dated 27 October 2022, Ms Karen Arbouin[1] advised the Appellant of her decision that both Allegation 1 and Allegation 2 are substantiated on the balance of probabilities (the Decision).
  1. [5]
    With respect to both Allegation 1 and Allegation 2, the decision-maker advised:

… I have determined that you have failed to comply with the Code of Conduct for the Queensland Public Service, in particular, section 1.5 Demonstrate a high standard of workplace behaviour and personal conduct.

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

We will:

  1. treat co-workers, clients and members of the public with courtesy and respect…
  1. [6]
    With respect to both Allegation 1 and Allegation 2, the decision-maker further advised:

… I have determined that there are grounds for you to be disciplined pursuant to section 18A(1)(g)(ii)(A) of the Ambulance Service Act 1991 (the Act), which provides:

  • Section 18A Grounds for discipline
  1. (1)
    The chief executive may discipline a service officer if the chief executive is reasonably satisfied the officer has –
  1. (g)
    contravened, without reasonable excuse, a provision of this Act or an obligation imposed on the person under

(ii) code of conduct

  1. (A)
    approved under the Public Sector Ethics Act 1994
  1. [7]
    On 17 November 2022, the Appellant filed an appeal in the Industrial Registry against the Decision.
  1. [8]
    On 21 November 2022, I issued an order staying the Decision until the determination of this appeal or further order of the Commission, pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) (the IR Act).

Jurisdiction

  1. [9]
    In the Appeal Notice, the Appellant indicated he is appealing "a fair treatment decision and I am not required to use my employer's individual grievances process before lodging this appeal against a disciplinary finding."
  1. [10]
    Section 194(1)(eb) of the Public Service Act 2008 (Qld) (the PS Act) provides than an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)".
  1. [11]
    Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given. The Decision was given to the Appellant on 27 October 2022 and the Appeal Notice was filed in the Industrial Registry on 17 November 2022.
  1. [12]
    I am satisfied the Decision is one that may be appealed against and was filed within the required timeframe.

Appeal principles

  1. [13]
    Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[2] This is the key issue for my determination. 
  1. [14]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[3]

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.

The pluarity in Li said:

… there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power...

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

  1. [15]
    A public service appeal is not by way of rehearing,[4] but involves a review of the decision arrived at and the decision–making process associated therewith. 
  1. [16]
    Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.[5]

What decisions can the Commission make?

  1. [17]
    In deciding a public service appeal, s 562C of the IR Act provides that the Commission may:
  • confirm the decision appealed against;
  • set the decision aside and substitute another decision; or
  • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Submissions

  1. [18]
    In accordance with the Directions Order issued on 21 November 2022, the parties filed written submissions.
  1. [19]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal.  The matter was decided on the papers.
  1. [20]
    I have carefully considered all submissions and attachments. I have determined not to approach the writing of this decision by summarising the entirety of those materials but will instead refer to the parties' key positions in my consideration.

Grounds of appeal

  1. [21]
    The question to be decided in this case is whether or not the decision to substantiate the allegations on the balance of probabilities was fair and reasonable.  That question is informed by several considerations stemming from the Appellant's grounds of appeal.
  1. [22]
    The Appellant's grounds of appeal fall under the following categories:
  • the findings were incorrectly reached;
  • unproven findings and unreliable evidence;
  • conclusions reached by the decision-maker which rely upon weak inferences;
  • faulty reasoning and unreasonable inferences as to the Appellant's state of mind; and
  • ignored, overlooked and dismissed relevant contextual information.
  1. [23]
    The grounds of appeal largely overlap. Therefore, I will proceed to determine whether the distinct disciplinary findings were fair and reasonable and take into account the grounds of appeal where relevant.
  1. [24]
    It is appropriate to consider each Allegation under two parts. That is, was it fair and reasonable for the decision-maker to determine that the act alleged occurred on the balance of probabilities (i.e., whether the Appellant took hold of Patient A's wrist and whether the Appellant struck Patient A in the face with a closed fist). I will then proceed to consider whether it was fair and reasonable for the decision-maker to determine that those acts, if they did indeed occur, were inappropriate. 

Allegation One – Was it fair and reasonable for the decision-maker to find that the Appellant took hold of Patient A's wrist?

Appellant's submissions

  1. [25]
    The Appellant submits that a study of the CCTV footage and evidence from those present show that Patient A's arm was raised toward the Appellant in a swinging motion parallel with the ground, and that the Appellant parried the forearm away with brief contact. The Appellant contends that characterising the contact as "taking hold" is not fair and reasonable, rather the contact was "fleeting, unaggressive, and not such as to cause harm."
  1. [26]
    The Appellant refers to evidence from those present, or who had viewed the CCTV on request, including:
  • an officer who reported seeing Patient A "putting her … left arm up towards [Mr Fisher's] face" and who thought "I would have done exactly the same thing, I would  have gone, hey, I'm going to move your arm out of the way. Getting too close to me, you're getting too close to my patient…";
  • an officer who though that Patient A "put her hand up" and then the Appellant "kind of put his hand up to defend himself"; and
  • an officer who thought the CCTV footage showed that Patient A "swung her left arm up" and that the Appellant's contact with her arm was with an "open hand".
  1. [27]
    The Appellant argues that the decision-maker unfairly failed to reconcile conflicting evidence between the eyewitness reports and CCTV footage and failed to reason why the CCTV footage was preferred.

Respondent's submissions

  1. [28]
    The Respondent submits the CCTV footage and screenshot clearly demonstrate that, however fleeting, it was open to the decision-maker, and a fair representation, to find that the Appellant took hold of Patient A's wrist.

Conclusion

  1. [29]
    Upon my independent review of the CCTV footage, I agree with the Appellant's submissions with respect to Allegation One.
  1. [30]
    My observations are:
  • Patient A put her left arm up toward the Appellant's face;
  • the Appellant parried Patient A's forearm away with brief contact;
  • the contact with Patient A's arm was with an "open hand";
  • the contact described under Allegation One was fleeting, unaggressive, and not as to cause harm; and
  • the Appellant did not "take hold" of Patient A's wrist.
  1. [31]
    In the case of Briginshaw v Briginshaw, Dixon J considered the balance of probabilities as a standard of proof (emphasis added):

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may held according to indefinite gradations of certainty; and this had led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.[6]

  1. [32]
    The observations described in [30] are based on an objective viewing of the CCTV footage. The officers' evidence to the effect that the motion was "to move" Patient A's arm out of the way with an "open hand" support the objective view that the Appellant's movement cannot be reasonably described as a "hold".
  1. [33]
    At [10] of the Decision, the decision-maker refers to "Appendix 1" in which it is reported that the CCTV footage depicts the Appellant "raising his right hand, appearing to attempt to hold the patient's left arm, which breaks free." The language "appearing to attempt to hold" is certainly not persuasive, but rather indicates the action should not be characterised as a "hold".
  1. [34]
    Based upon the CCTV footage and witness testimony, I cannot discern how the decision-maker was actually persuaded that the Appellant took hold of Patient A's arm. Considering the consequences of the finding if proved, I do not accept that it was open to the decision-maker to be reasonably satisfied that the act occurred as alleged. 

Allegation One – Was it fair and reasonable for the decision-maker to find that the Appellant inappropriately used force?

Appellant's submissions

  1. [35]
    The Appellant contends he was empowered to take any reasonable measures to protect himself or other persons from potential danger or assault pursuant to the QAS Occupational Safety Training-Violence Protection (OST-VP) Manual (2016) (the Manual). The Manual defines "reasonable" as "that which a careful officer of a similar class (level of training and experience) would do when confronted with the exact same situation."
  1. [36]
    The Appellant submits the Respondent relied upon evidence of an officer who did not actually witness the event and an officer who admitted to not being able to recall a great deal about the shift.
  1. [37]
    The Appellant contends his view that Patient A was pointing and threatening the patient in his care (having already threatened her support person) was one that could reasonably be reached in the heat of the moment and was shared by others who were present or viewed the CCTV.
  1. [38]
    The Appellant argues that in assessing the risk of violence from Patient A, the decision-maker incorrectly failed to take into account the following observations from fellow officers:
  • "we just weren't sure… what she doing and what was going to happen…";
  • it looked like Patient A "went after Grant, went after Niki" and was "going for the girl in the grey jumper";
  • "I didn't know why she didn't hit me… I was scared";
  • "at no time did I think that anyone provoked this patient or escalated her or did anything to antagonise her or make it worse"; and
  • "very anxious and scared" and felt that Patient A "was going to assault someone".
  1. [39]
    The Appellant referred to comments from a security officer who witnessed the incident and reported thinking at the time that Patient A might strike one of the officers and was not surprised that Patient A lashed out.
  1. [40]
    The Appellant argues that failing to take into consideration the "thought(s)" of the interviewed officers appears to be unfairly at odds with the approach to assessing if an authorised officer has acted reasonably pursuant to the Manual as extracted at [35] above.
  1. [41]
    The Appellant refers to the decision-maker's findings that the Appellant had the opportunity to withdraw from the presence of Patient A and move the stretcher which could have avoided the confrontation. The Appellant contends he could not merely have withdrawn from the presence of Patient A as there was a confined space within which to operate and it was not unreasonable for the Appellant to act, believing his patient and her support person were at risk of danger.
  1. [42]
    The Appellant further submits the decision-maker found that the Appellant did not move to "create a bit of a barrier" which is contrary to evidence given by the Appellant and eyewitnesses. The Appellant contends that conclusion is about the Appellant's state of mind. The Appellant refers to several eyewitness accounts such as:
  • "so Mick positioned himself between the aggressive patient – whose back was flush against the wall, and his patient on the stretcher";
  • the Appellant "protected the first patient… he was trying to get her away from that patient, and if that meant stepping towards her to get the, you know, space between her and his patient on the stretcher, that's what he would do";
  • the Appellant "tried to de-escalate the situation. The QAS officer placed himself between his [patient] and [Patient A]"; and
  • "[Patient A] has turned towards other [patients] including a young female and other QAS officers, pointing her finger in their faces swearing and yelling and launching forward toward young [patient] when Officer Fisher has stepped in between to protect young [patient]."
  1. [43]
    The Appellant submits it was unfair for the decision-maker to rely on CCTV evidence to reach a conclusion about the Appellant's state of mind, given no apparent weight was given to the Appellant's direct evidence and observations of eyewitnesses.

Respondent's submissions

  1. [44]
    The Respondent contends the Appellant's arguments are misconceived because they presume, without evidence, that the Appellant's actions toward Patient A could be considered as representing the actions of "a careful officer".
  1. [45]
    The Respondent points out that no officer has remarked that they would have acted the same "when confronted with the exact same situation".
  1. [46]
    The Occupational Safety Training Violence Prevention Manual states:

When assessing if an authorised officer had acted reasonably, one would have regard for all the circumstances of the case: the patient; the mindset of bystanders; the perceived level of danger to the patient and others; the need for urgent action; the circumstances surrounding that particular situation; and the environment itself.[7]

  1. [47]
    The Respondent submits the Decision demonstrates the decision-maker considered all the information available to her, including responses made on the Appellant's behalf - that is, despite not referring to all the information in the Decision.
  1. [48]
    With respect to the witnesses relied upon, the Respondent argues that observations of Patient A's demeanour leading up to the exchange are relevant and although an officer may not recall a great deal about the shift, that does not discredit what she did recall.
  1. [49]
    The Respondent submits it was open to the decision-maker to prefer the CCTV footage where it conflicted with the explanations provided by the Appellant and his representative – including what certain officers "thought" was occurring.
  1. [50]
    The Respondent rejects the assertion that that the decision-maker drew conclusions based on inferences unreasonably made but rather reached them on the balance of probabilities. 
  1. [51]
    The Respondent argues that the decision-maker relied upon her observations of the CCTV footage when determining that the incident escalated as the Appellant advanced on Patient A and what occurred with respect to taking hold of Patient A's left arm. The Respondent submits that it was clearly open to the decision-maker to rely on her observations of the CCTV footage to reach the conclusion that she did.
  1. [52]
    The Respondent submits that the following extract demonstrates the decision-maker considered, but rejected the Appellant's response:

Nor do I accept that you could not have avoided the situation by running off "down the hall with the stretcher". The CCTV footage demonstrates that within seconds of you striking the patient, your patient on the stretcher was easily moved backward by your partner. Indeed, the space behind your patient when moved by your partner was as clear as it was when you first advanced on the patient.

  1. [53]
    Further, the Respondent contends that given the CCTV footage, it was open for the decision-maker to conclude:

The CCTV footage is clear, you did not, as you now say, move to "create a bit of a barrier". Having repositioned your patient's support person, you immediately moved towards the patient and continued to move towards the patient until she had her back almost to the wall.

  1. [54]
    The Respondent denied that the decision-maker has made a conclusion about the Appellant's state of mind with respect to creating "a bit of a barrier" because conclusions based on observations of the Appellant physically taking steps towards Patient A is a conclusion based on fact, not the Appellant's state of mind.

Conclusion

  1. [55]
    Even if I am wrong in determining that the Appellant did not take hold of Patient A's wrist - for the reasons that follow, I disagree that the initial action taken by the Appellant was an inappropriate use of force.
  1. [56]
    With respect to whether the Appellant's actions were "reasonable" as defined under the Manual, the evidence of an officer that "I would have done exactly the same thing, I would have gone, hey, I'm going to move your arm out of the way. Getting too close to me, you're getting too close to my patient" rings true. Another officer reported the Appellant "kind of put his hand up to defend himself". Reference to the word "defend" similarly illustrates that the officer may too have acted in the same way as the Appellant in the same circumstance.
  1. [57]
    Decision-makers should not take narrow views or make generalised assumptions when dealing with circumstances like this – one where the Appellant and other officers present were faced with a difficult and delicate situation. As the definition of "reasonable" required consideration of what "a careful officer of a similar class (level of training and experience) would do when confronted with the exact same situation", I would expect the decision-maker to take into consideration the observations of the other QAS officers present that day.
  1. [58]
    When assessing if an authorised officer had acted reasonably, the Manual indicates regard should be had for circumstances including: the patient, mindset of bystanders, perceived level of danger to the patient and others, the need for urgent action, the circumstances surrounding that situation, and the environment itself. In that regard, I make the following observations:
  • the CCTV footage showed Patient A was acting aggressively towards QAS officers, a member of the public and a patient;
  • Patient A's face was menacing and her demeanour threatening;
  • Patient A was moving down the hall and entering the personal space of several people, including QAS staff and the Appellant's patient;
  • Patient A was pointing into the face of several individuals with her other hand behind her back;
  • it appeared that Patient A got particularly close to an officer and backed that officer into a corner or at least her actions forced them to move backwards in order to distance themselves from her;
  • there was no one accompanying Patient A as she walked down the hall, certainly no sight of QPS, a security officer or a health professional who may have been able to calm her;
  • an officer reported not being sure what Patient A was doing and what was going to happen;
  • an officer reported that it looked like Patient A was "going for" people;
  • an officer reported being "scared" and thinking Patient A might hit her;
  • an officer reported feeling "very anxious and scared" and felt that Patient A "was going to assault someone";
  • it is apparent the bystanders perceived there was a level of danger and that there was a significant amount of uncertainty as to how the situation would play out;
  • the Appellant's patient was laying on a stretcher – presumably requiring medical assistance of some sort;
  • the Appellant was taking care of an unwell patient who was faced with Patient A menacingly pointing a finger in her face;
  • the Appellant was seemingly making her way down the hall towards the triage area;
  • the area at which the event unfolded appeared to be a sort of bottle neck where several people were crowded with wheelchairs preventing movement down one side;
  • there was no indication that Patient A was going to stop approaching people; and
  • had the Appellant not intervened, there appears to be a possibility that Patient A would either assault someone or similarly conduct herself in the triage area.
  1. [59]
    My objective observations of the CCTV footage coupled with the eye witness testimony persuades me that the Appellant was taking care of a patient requiring medical attention. He then observes Patient A aggressively moving down the hall, pointing her finger at other officers, pointing her finger at his patient's support person and then moving into a confined space between the wall and his patient on the stretcher. Patient A turns and focuses her attention on the Appellant's patient. Based on the CCTV footage and eyewitness accounts, it is not unreasonable that the Appellant assessed there to be a risk that Patient A would either attack someone within that vicinity or continue down the hall and attack someone else.
  1. [60]
    After moving the support person out of the way, the CCTV footage displays the Appellant moving himself between his patient and Patient A. In his submission, the Appellant moved to create a sort of barrier and eyewitness testimony supports this position as outlined in [42] above. The Respondent appears to take issue with the Appellant moving closer to Patient A rather than just merely standing against the stretcher. The decision-maker assertively concluded "The CCTV footage is clear, you did not, as you now say, move to "create a bit of a barrier."" That conclusion lacks intelligible justification where the CCTV footage depicts the Appellant forming a barrier between Patient A and his patient.
  1. [61]
    My view is that not only did the Appellant create a barrier, he also created a buffer between Patient A and his patient. By moving towards Patient A, she retreated further away from the Appellant's patient. Although this movement provides contextual background to Allegation One, it is the accusation of taking hold of Patient A's wrist that goes to the heart of Allegation One and for reasons explained above, I have determined that action did not occur.
  1. [62]
    The Respondent argued that it was open to the decision-maker to prefer the CCTV footage where it conflicted with what certain officers "thought" was occurring. In my assessment of the material, the thoughts of the officers do not conflict with the CCTV footage and in assessing reasonableness, the mindset of the bystanders who were present in the environment and perceived the danger – is significant.
  1. [63]
    The Decision at [23] refers to eyewitness testimony of officers who do not describe Patient A as violent – however I would note that their accounts do depict that "she was very agitated", "yelling", "swearing". Although the CCTV footage does not have audio, I viewed Patient A coming into close proximity with several people – her agitated state, menacing facial expression, yelling and swearing could reasonably evince in the mind of the Appellant that violence was not only possible, but imminent.
  1. [64]
    The Appellant submits it was reasonable for him "to assume the disturbed patient would continue her journey along the corridor, as she had done before". In response, the decision-maker states at [15] of the Decision:

I concur, that would have been a reasonable assumption in the circumstances; however, it is clear that either you did not make that assumption, or if you did, you chose not to rely on it. Had you acted on such an assumption, and had let the patient be, I am of the view that neither you nor the patient would have been struck.

  1. [65]
    It is easy with the benefit of hindsight to view CCTV footage and ponder how the situation could have been better handled. However, putting oneself in the shoes of the Appellant, it rings true that he perceived danger to those in his immediate vicinity and also a risk to those in the triage area. Although possible that neither the Appellant nor his patient would have been struck if the Appellant had not acted, it is also possible that someone else further down the hall may well have been. In light of the totality of circumstances, the decision-maker's remark that "Nor do I accept that you could not have avoided the situation by running off "down the hall with the stretcher"" lacks intelligible justification and places an unreasonable assumption that there was a simple solution to what was clearly a difficult situation.
  1. [66]
    Although I have already determined that it was unreasonable for the decision-maker to conclude the Appellant had taken hold of Patient A's wrist, if I am wrong on that point - I find it was not reasonably open to the decision-maker to find that it was unreasonable for the Appellant to do so in light of the circumstances outlined at [58]-[59] above.
  1. [67]
    On that basis, I find that it was unreasonable for the decision-maker to determine that Allegation One is substantiated on the balance of probabilities.

Allegation Two – Was it fair and reasonable for the decision-maker to find that the Appellant struck Patient A in the face with his closed fist?

  1. [68]
    Upon review of the CCTV footage, I accept it was reasonable for the decision-maker to conclude that the Appellant struck Patient A in the face with a closed fist. Upon review of the materials filed, it does not appear that the Appellant contests that fact either. The CCTV footage speaks for itself in this regard.

Allegation Two – Was it fair and reasonable for the decision-maker to find that the Appellant inappropriately caused injury to Patient A?

Appellant's submissions

  1. [69]
    Many of the Appellant's submissions outlined at [35] to [43] above are also relevant to Allegation Two.
  1. [70]
    The Appellant argues that officers of a similar class who were present at the relevant time have expressed support for the Appellant and noted the difficult situation he was in. The Appellant referenced the following remarks:
  • another officer told the Appellant soon after the event that he "had done nothing wrong";
  • "…Mick's actually really good and I hope he doesn't lose his job…";
  • another officer apologised to the Appellant because she felt that "he was protecting everyone else, and he shouldn't have been in that situation"; and
  • another officer asked the Appellant to strongly consider pressing charges against Patient A.
  1. [71]
    The Appellant contends that lack of reference to the word "punch" does not suggest the Appellant isn't genuinely remorseful or has no insight – rather, that was the style chosen by the Appellant's industrial representative in correspondence. The Appellant argues that, contrary to the decision-maker's inference, he has been frank about his actions in punching Patient A.
  1. [72]
    The Appellant submits that the decision-maker overlooked one of the main principles when managing patients with acute behavioural disturbance, that is, "Yes I have the right resources: including QPS, CCP other QAS resources".[8] The Appellant points out that neither the QPS nor security officers were available to assist the Appellant.
  1. [73]
    The Appellant rejects any argument that he "stood down" or "ignored" safety training and tactics.

Respondent's submissions

  1. [74]
    The Respondent contends that although neither QPS nor security officers were available, that does not mean that QAS officers stand down or ignore all of the other Occupational Safety Training and tactics they have received.

Conclusion

  1. [75]
    I reject the Appellant's contention that the remarks of the other officers suggest that they would have acted similarly when confronted with the exact same situation.
  1. [76]
    Comments such as "you shouldn't have been in that situation" and the Appellant "is actually really good and I hope he doesn't lose his job" are not strong indications that the officers making those remarks would have done the same as what the Appellant did. Even the remark to the effect that the Appellant "had done nothing wrong" appears to be more of a reassurance from a colleague rather than an indication that the officer would have done the exact same thing had they been in the Appellant's position. On that basis, I find it cannot be "reasonable" under the Manual for the Appellant to have struck Patient A in the face with his closed fist, regardless of how difficult the situation was.
  1. [77]
    Although I have found that Allegation One was not reasonably substantiated in light of the factors outlined at [58]-[59] – that is where it stops. The factors pertinent to Allegation Two are:
  • Patient A, albeit aggressive and verbally abusive, is a patient who is presumably unwell;
  • striking a person with a closed fist is a strong use of force;
  • no other method of restraint was first attempted following Patient A striking the Appellant;
  • the Appellant might have walked away from Patient A after she struck him (although, as I have earlier observed, that may well have shunted the problem to another person further down the hall, who may not have been as well equipped to deal with the threat); and
  • given the difference in stature between the Appellant and Patient A, the gravity of the closed fist punch appeared disproportionate.
  1. [78]
    The Appellant indicated that because he did not expect Patient A to strike him, he "reacted without thinking. It was an involuntary reflex." Although that may be the case, it is in direct contravention of s 1.5 of the Code of Conduct which required the Appellant to treat Patient A with courtesy, respect and present himself in a professional manner. In my view, that provision of the Code of Conduct does not exempt conduct which was "unplanned, spontaneous, unintentional, instinct".
  1. [79]
    The Appellant was clearly thrust into a difficult situation. When attempting to diffuse the situation, the Appellant was struck in the face by Patient A. Unfortunately, the Appellant reacted with what appeared to be disproportionate force. I agree that conduct cannot be said to constitute self-defence. I accept the decision-maker's assessment that the Appellant's conduct was inappropriate and reject any contention that the finding in relation to Allegation Two was incorrectly reached.
  1. [80]
    The decision to substantiate Allegation Two was fair and reasonable.

Proposed disciplinary action

  1. [81]
    Although this public service appeal does not pertain to the proposed disciplinary action, I will make some final remarks. With respect to Allegation Two, the proposed disciplinary action is termination of the Appellant's employment with QAS.
  1. [82]
    I disagree with the decision-maker's conclusions that the lack of reference to "punch" indicates the Appellant has not owned his conduct and that he is seeking to deflect the fact he punched Patient A. The Appellant submits he is immensely remorseful for what occurred and has sought counselling since the event. The Appellant contends he does not have a violent nature and there is no material before me that would suggest otherwise.
  1. [83]
    My view is that the Appellant sought to diffuse the situation, protect his patient and prevent the possibility of harm erupting in the triage area. I do not accept that the Appellant intentionally provoked the assault, nor did he intentionally escalate Patient A's mood. The difficult circumstances and absence of other available resources warrant a more understanding approach to this matter.
  1. [84]
    I would urge QAS to take into account the difficulty of this specific situation which may have had a bearing on the Appellant's actions, the fact he does not have a violent history, his initial intentions to protect and prevent the possibility of harm, the impact that termination would have on him as well as the possibility for the Appellant to receive further training and learn from this mistake.
  1. [85]
    I encourage the parties to collaboratively engage as to how the need for disciplinary action may be appropriately addressed.  I have recognised that QAS has not yet 'determined' the disciplinary action, but rather has only 'proposed' it. The above factors are significant and should be given the appropriate weight by QAS in determining whether termination is a fair and reasonable disciplinary action.
  1. [86]
    The devastating impact of termination mandates that such a penalty is not undertaken lightly. Certainly, a range of less extreme disciplinary measures are available under s 18B(1) of the Ambulance Service Act 1991 (Qld):
  • reduction of classification level and a consequential change of duties
  • transfer or redeployment to other ambulance service employment
  • forfeiture or deferment of a remuneration increment or increase
  • reduction of remuneration level
  • imposition of a monetary penalty
  • if a penalty is imposed, a direction that the amount of the penalty be deducted from the officer’s periodic remuneration payments
  • a reprimand
  1. [87]
    In my view, those alternatives should be subject of measured and ongoing consideration.

Conclusion

  1. [88]
    I have concluded it was not reasonably open to the decision-maker to substantiate Allegation One on the balance of probabilities. Whereas the determination with respect to Allegation Two was fair and reasonable.
  1. [89]
    I order accordingly.

Order

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with the following decision:

  1. That Allegation One is not substantiated.
  1. That Allegation Two is substantiated.

Footnotes

[1] Deputy Commissioner, Statewide Operations – North and Rural & Remote, Queensland Ambulance Service.

[2] Industrial Relations Act 2016 (Qld) s 562B(3).

[3] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[4] 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 (Qld).

[5] Industrial Relations Act 2016 (Qld) s 567(2).

[6] (1938) 60 CLR 336, 361-362.

[7] Page 65.

[8] QAS Clinical Practice Guideline: Behavioural disturbances/acute behavioural disturbance, 2.

Close

Editorial Notes

  • Published Case Name:

    Fisher v Queensland Ambulance Service

  • Shortened Case Name:

    Fisher v Queensland Ambulance Service

  • MNC:

    [2023] QIRC 39

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    10 Feb 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
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
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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