Fitzpatrick v State of Queensland (Queensland Health)
[2023] QIRC 51
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Fitzpatrick v State of Queensland (Queensland Health)[2023] QIRC 51
- Add to List
Fitzpatrick v State of Queensland (Queensland Health)[2023] QIRC 51
Fitzpatrick v State of Queensland (Queensland Health)[2023] QIRC 51
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Fitzpatrick v State of Queensland (Queensland Health) [2023] QIRC 051 |
PARTIES: | Fitzpatrick, Tony (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/594 |
PROCEEDING: | Public Service Appeal – Appeal against a disciplinary decision |
DELIVERED ON: | 17 February 2023 |
MEMBER: | Hartigan DP |
HEARD AT: | On the papers. |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a disciplinary decision – disciplinary decision made pursuant to s 187 of the Public Service Act 2008 (Qld) – where allegations substantiated – consideration of penalty – whether penalty was proportionate to substantiated conduct – proposed penalty was fair and reasonable – decision appealed against confirmed– stay of decision revoked. |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562. Public Service Act 2008 (Qld) s 187, s 188, s 194 and s 197. Directive 14/20: Discipline, cl 8. Code of Conduct for the Queensland Public Service 2011 cl 1.5. |
CASES: | Brandy v Human Rights and equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) |
Reasons for Decision
Introduction
- [1]Mr Tony Fitzpatrick is employed by the State of Queensland (Queensland Health) (“the Department”) as an Orthopaedic Technician within Operational Services at Bundaberg Hospital, Wide Bay Hospital and Health Service (“WBHHS”).
- [2]Mr Fitzpatrick has been employed with the Department since 11 November 1991.
- [3]Mr Fitzpatrick appeals a disciplinary decision dated 10 May 2022, made by the Department, which proposed termination of employment as the disciplinary penalty.
- [4]By letter dated 10 March 2022, the Department issued Mr Fitzpatrick a show cause notice which put four (4) allegations to Mr Fitzpatrick for his response in relation to his alleged conduct during a shift at the WBHHS on 3 February 2022 and 1 March 2022.
- [5]The four allegations put to Mr Fitzpatrick for his response in the show cause notice were as follows:
Allegation one
That on 3 February 2022, whilst interacting with a patient of the Bundaberg Hospital, Wide Bay Hospital and Health Service (WBHHS), you were disrespectful and rude.
…
Allegation two
That on 3 February 2022, whilst working with a patient fitting their moonboot at the Bundaberg Hospital, Wide Bay Hospital and health Service (WBHHS), you failed to treat the injury with sufficient care, amend and/or cease your actions which resulted in the patient being required to communicate repeatedly to you that you were causing them pain.
…
Allegation three
That on 3 February 2022, following an altercation with a patient, you behaved and spoke in a manner meant to threaten and/or intimidate the patient.
…
Allegation four
That on Tuesday 1 March 2022, you were intimidating and aggressive towards a female co-worker, when you engaged with her following her treatment of a patient.
…
- [6]On 7 April 2022, Mr Fitzpatrick responded to the allegations in writing.
- [7]By letter dated 9 May 2022, the Department issued a decision with respect to all four allegations ('the disciplinary finding decision'). The Department determined that all four allegations were substantiated on the balance of probabilities.
- [8]Mr Fitzpatrick was placed on notice that, in relation to the imposition of disciplinary action, the decision maker was giving serious consideration to the termination of Mr Fitzpatrick's employment. However, Mr Fitzpatrick was advised that no final decision about the disciplinary action to be taken would be made until after he had been provided with an opportunity to respond.
- [9]Mr Fitzpatrick filed a notice of appeal in the Queensland Industrial Relations Commission (“the Commission”) on 30 May 2022, appealing the disciplinary finding decision. Mr Fitzpatrick relies on the following grounds in support of his appeal:
- The Appellant denies all of the Allegations;
- Contends that with respect to allegations 1 & 2 that it was the patient who was in-fact being rude, disrespectful and making sexist comments to him and his colleague Mr. O'Dare;
- Disputes the substantiation of allegations 1 to 3 on the basis that Mr O'Dare said in his statement that he was in-fact the person who fitted the moonboot to the Patient;
- Admits that he contacted the hospital Security Staff due to the patients abusive behaviour;
- Highlights the inconsistencies between the Riskman Report and the conclusions drawn by the Respondent as to the de-escalation of the situation;
- With respect to the allegation that the patient chose to attend another facility due to the incident, contends that assertions of the Respondent are not accurate due to the patient having returned to the fracture clinic shortly after the incident (approximately a week). Additionally, upon her return, Mr O'Dare reported to and had his line manager Mr Daly accompany him in handling this same patient due to her being 'non-compliant' and 'difficult';
- Highlights that Ms. Close, who had previous experience indicated to the Appellant that she has observed the patient taking a contemptuous attitude towards the Appellant and that if required, would provide a statement to that effect;
- Denies ever speaking to Ms. Close in a rude, aggressive or intimidating manner;
- Contends that in consideration of Ms. Close's relatively minor experience and other previous occasions of Ms. Close seeking the Appellant's advice, sought to give Ms. Close professional advice with respect to fitting (specifically children's) casts;
- Contends that Ms Close never expressed or indicated to him that she felt disrespected or intimidated by the Appellant's words or conduct;
- Highlights that the facts relating to 'redness' in the face relied upon by the Respondent in substantiating allegation 4 very likely could have been caused by other means such as the face masks required to be worn and the medication the Appellant was taking at the time;
- Contends that Mr Hutchin's may have had ulterior motives with respect to making a false or fraudulent allegations against the Appellant i.e the bad relationship between the two and the otherwise close personal relationship between Ms. Close and Mr. Hutchins;
- Contends that any advice given to Ms. Close was intended to be given in a friendly and respectful manner and that the two have continued to have always had a friendly and professional working relationship.
…
- [10]On 31 May 2022, the Commission ordered that the decision subject of the appeal be stayed until the determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) (“the IR Act”).
- [11]The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld) (“the PS Act”) which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the IR Act by the Queensland Industrial Relations Commission ("the Commission").
- [12]Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable.
- [13]I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[1] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing, but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[2]
- [14]For the reasons contained herein, I have found that the decision was fair and reasonable.
The decision
- [15]In the decision, the decision maker considered each of the four allegations made against Mr Fitzpatrick. After considering the particulars and evidence relied on with respect to each allegation together with Mr Fitzpatrick’s response to those matters, the decision maker substantiated each of the four allegations. The decision maker ultimately determined as follows:
Allegation one
…
On the basis of my finding in relation to Allegation one, I have determined that pursuant to section 187(1)(g) of the Act, you contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, specifically:
- Clause 1.5 of the Code of Conduct – Demonstrate a high standard of workplace behaviour and personal conduct.
…
Allegation two
…
On the basis of my finding in relation to Allegation two, I have determined that pursuant to section 187(1)(b) of the Act, you are guilty of misconduct that is inappropriate or improper conduct in an official capacity.
…
Allegation three
…
On the basis of my finding in relation to Allegation three, I have determined that pursuant to section 187(1)(b) of the Act, you are guilty of misconduct that is inappropriate or improper conduct in an official capacity.
…
Allegation four
…
On the basis of my finding in relation to Allegation four, I have determined that pursuant to section 187(1)(b) of the Act, you are guilty of misconduct that is inappropriate or improper conduct in an official capacity.
…
- [16]The decision maker provided detailed reasons for the disciplinary finding decision, which may be summarised as follows:
Allegation one
- by Mr Fitzpatrick's own admission, he failed to properly greet the patient;
- that Mr Fitzpatrick was intent on arguing with the patient regarding the advice and medical guidance he provided;
- the patient reported that she was made to feel like a “nuisance” to Mr Fitzpatrick during the appointment. The patient claimed that it was Mr Fitzpatrick's verbal and non-verbal communication that contributed to this;
- when the patient expressed their concerns to Mr Fitzpatrick regarding the quality of his service, Mr Fitzpatrick did not provide information regarding the appropriate avenues a patient should take to lodge a complaint;
- that the complaint made by the patient, coupled with the witness statement of Mr O'Dare demonstrates that Mr Fitzpatrick did not remain “calm”;
- that Mr Fitzpatrick received appropriate training pertaining to de-escalation and anger management;
- despite Mr Fitzpatrick's claim that the patient spoke to him in a “less desirable manner”, Mr Fitzpatrick is still expected to ensure that he was respectful at all times;
- as a senior employee, Mr Fitzpatrick should be aware of the appropriate standards of conduct in accordance with the Code of Conduct for the Queensland Public Service and Values of the WBHHS;
- that Mr Fitzpatrick's behaviour was not an “anomaly” because he had repeatedly been issued disciplinary warnings and counselling for similar past behaviour; and
- in the circumstances, Mr Fitzpatrick had “lack of remorse”.
Allegation two
- although Mr Fitzpatrick relies on the fact that he himself did not complete the application of the moonboot, and therefore should not be held responsible for any pain inflicted for the application of the moonboot, the complaint refers to all care provided to the patient;
- the patient stated that Mr Fitzpatrick was not gentle with the application of the moonboot, even though “he could physically see and hear” the pain experienced by the patient. The patient repeatedly told Mr Fitzpatrick that she was in pain;
- Mr Fitzpatrick did not offer an apology to the patient for her pain, nor did he offer support or demonstrated empathy;
- the witness statement provided by another employee, Mr O'Dare, corroborates the claims made by the patient;
- that that Mr Fitzpatrick received appropriate training pertaining to de-escalation and anger management;
- as a senior employee, Mr Fitzpatrick should be aware of the appropriate standards of conduct in accordance with the Code of Conduct for the Queensland Public Service and Values of the WBHHS.
Allegation three
- consideration was had to the substantiation of allegation one and two;
- Mr Fitzpatrick did not make an attempt to de-escalate or calm the patient or acknowledge the vulnerable position she was in;
- Mr Fitzpatrick's decision to remove himself from the room and inform the patient that he was going to call security made the patient feel threatened;
- it was unnecessary to call security as the patient, in their physical state, posed no physical threat;
- that calling security was not because of concerns regarding the safety of Mr O'Dare as Mr Fitzpatrick left the area prior to security arriving. Further to this, Mr O'Dare raised no concern regarding his safety;
- that Mr Fitzpatrick received appropriate training pertaining to de-escalation and anger management;
- as a senior employee, Mr Fitzpatrick should be aware of the appropriate standards of conduct in accordance with the Code of Conduct for the Queensland Public Service and Values of the WBHHS;
- that Mr Fitzpatrick's behaviour was not an “anomaly” because he had repeatedly been issued disciplinary warnings and counselling for similar past behaviour; and
- Mr Fitzpatrick lacked remorse and insight into how his behaviour would have made the patient feel threatened and/or intimidated.
Allegation four
- that Mr Fitzpatrick spoke to Ms Close in a way, as described by a witness, that left her stressed and upset;
- that Ms Close's account of events is supported by other witness statements and is therefore more reliable than Mr Fitzpatrick's account;
- that Ms Close would have no reason to provide a false statement because she has described many of her past interactions with Mr Fitzpatrick as good and that they have both “got on well”;
- as a senior employee, Mr Fitzpatrick should be aware of the appropriate standards of conduct in accordance with the Code of Conduct for the Queensland Public Service and Values of the WBHHS;
- that Mr Fitzpatrick's behaviour was not an “anomaly” because he had repeatedly been issued disciplinary warnings and counselling for similar past behaviour; and
- Mr Fitzpatrick lacked remorse in the circumstances and failed to acknowledge his actions and/or behaviour.
Relevant statutory provisions
- [17]Section 187 of the PS Act provides for the grounds for discipline as follows:
187 Grounds for discipline
- (1)A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
- (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
- (b)been guilty of misconduct; or
- (c)been absent from duty without approved leave and without reasonable excuse; or
- (d)contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
- (e)used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
- (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—
- (i)failing to disclose a serious disciplinary action; or
- (ii)giving false or misleading information; or
- (f)contravened, without reasonable excuse, a provision of this Act; or
- (g)contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action
- (2)A disciplinary ground arises when the act or omission constituting the ground is done or made.
- (3)Also, a chief executive may discipline, on the same grounds mentioned in subsection (1) —
- (a)a public service employee under section 187A; or
- (b)a former public service employee under section 188A .
- (4)In this section—
misconduct means—
- (a)inappropriate or improper conduct in an official capacity; or
- (b)inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.
Example of misconduct—
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—
- (a)a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
- (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.
- [18]Section 188 of the PS Act identifies the disciplinary action that may be taken against a public service employee as follows:
188 Disciplinary action that may be taken against a public service employee
- (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
- (2)If the disciplinary action is taken following an agreement under section 187A (4) between the previous chief executive and the current chief executive mentioned in the section, the chief executives must agree on the disciplinary action.
- (3)However, a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.
- (4)Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee—
- (a)must not be more than half of the amount payable to or for the employee in relation to the payment; and
- (b)must not reduce the amount of salary payable to the employee in relation to the period to less than—
- (i)if the employee has a dependant—the guaranteed minimum wage for each week of the period; or
- (ii)otherwise—two-thirds of the guaranteed minimum wage for each week of the period.
- (5)In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
- (6)An order under subsection (1) is binding on anyone affected by it.
- [19]The Code of Conduct for the Queensland Public Service Qld ('the Code') came into effect on 1 January 2011. The purpose of the Code is to outline how government employees should conduct themselves while delivering services to the Queensland community.
- [20]Clause 1.5 of the Code provides that:
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 person, whether fellow employees, clients or members of the public.
We will:
- 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
- ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment
- ensure our fitness for duty, and the safety, health and welfare of ourselves and other in the workplace, whether co-workers or clients
- ensure our private conduct maintains integrity of the public service and our ability to perform our duties; and
- comply with legislative and/or policy obligations to report employee criminal charges and convictions
…
- [21]Directive 14/20: Discipline ("Discipline Directive") came into effect on 25 September 2020. The purpose of the Discipline Directive, amongst other things, is to outline the process for managing disciplinary action under the PS Act.
- [22]Clause 8.3 of the Discipline Directive relevantly provides the process that must be followed in commencing a show cause process for a disciplinary finding as follows:
- (a)The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding):
- (b)Written details of each allegation in clause 8.3(a) must include:
- (i)the allegation
- (ii)the particulars of the facts considered by the chief executive for the allegation
- (iii)the disciplinary ground under section 187 of the PS Act that applies to the allegation.
- (c)A copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence.
- (d)The chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension.
- (e)If the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 8.3(d) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
…
- [23]Clause 8.4 of the Discipline Directive provides for a decision on grounds as follows:
- (a)A chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities.
- (b)The chief executive must advise the employee of the chief executive’s finding in relation to each allegation included in the show cause notice on disciplinary finding.
- (c)For each finding in clause 8.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established.
- (d)The employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding.
- (e)If the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 8.5) and/or management action implemented, or to take no further action.
If the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.
…
- [24]Clause 8.5 (d) of the Discipline Directive sets out the factors the chief executive should consider when proposing appropriate and proportionate disciplinary action. The considerations are as follows:
…
- (d)In proposing appropriate and proportionate disciplinary action, the chief executive should consider:
- (i)the seriousness of the disciplinary finding
- (ii)the employee’s classification level and/or expected level of awareness about their performance or conduct obligations
- (iii)whether extenuating or mitigating circumstances applied to the employee’s actions
- (iv)the employee’s overall work record including previous management interventions and/or disciplinary proceedings
- (v)the employee’s explanation (if any)
- (vi)the degree of risk to the health and safety of employees, customers and members of the public
- (vii)the impact on the employee’s ability to perform the duties of their position
- (viii)the employee’s potential for modified behaviour in the work unit or elsewhere
- (ix)the impact a financial penalty may have on the employee
- (x)the cumulative impact that a reduction in classification and/or pay-point may have on the employee
- (xi)the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.
Was the decision fair and reasonable?
- [25]I will now consider whether on the evidence before the decision maker, the allegations were capable of substantiation and whether the decision was fair and reasonable.
Allegation one
- [26]Mr Fitzpatrick denies that he was disrespectful and rude to the patient and therefore submits that the substantiation of allegation one is unfair and unreasonable. Mr Fitzpatrick disputes the Department's contention that he admitted that he did not greet the patient upon her presentation to the plaster room. In support of this, Mr Fitzpatrick claims that it was Mr O'Dare who greeted the patient and fitted her moon boot.
- [27]In his submissions, Mr Fitzpatrick claims that it was in fact the patient who was “verbally abusive and rude” and that he used his training and extensive experience to de-escalate the situation by calling security and seeking the assistance of another staff member. In the circumstances, Mr Fitzpatrick submits that his response to the situation was reasonable and aligned with the Code of Conduct for the Queensland Public Service and Values of the WBHHS.
- [28]The decision identifies the particulars relied on with respect to allegation one. Those particulars include the account of the incident taken by the patient and Mr O'Dare. It was open on the evidence for the decision maker to reject Mr Fitzpatrick’s assertion that he remained calm. The decision maker preferred the evidence of the patient and Mr O'Dare which supported an account that the incident escalated and Mr Fitzpatrick raised his voice at the patient.
- [29]I also consider it was open on the evidence for the decision maker to accept the account given by Mr O'Dare, including, in summary, that Mr Fitzpatrick advised Mr O'Dare that he would not treat the patient and that he asked Mr O'Dare to treat the patient. Further, that as Mr Fitzpatrick was leaving the treatment room he called security to assist. Mr O'Dare’s account is largely consistent with the patient’s account of the incident.
- [30]Whilst Mr Fitzpatrick contends that his response to the incident was appropriate, the decision maker preferred the evidence of the patient and Mr O'Dare which supported a view that Mr Fitzpatrick was involved in an incident with a patient wherein he raised his voice, that he advised the patient he would not treat her, that he requested Mr O'Dare to treat the patient instead, and that he unreasonably escalated the incident by calling security.
- [31]Other than disputing the finding, Mr Fitzpatrick makes no criticism of the evidence relied on. I consider the finding decision with respect to allegation one was arguable to be made on the evidence and that it was fair and reasonable.
Allegation two
- [32]Mr Fitzpatrick submits that the substantiation of allegation two is unreasonable because it was Mr O'Dare who fitted the patient's moonboot and not himself. In support of this, Mr Fitzpatrick submits that Mr O'Dare identifies himself as the person who fitted the patient's moonboot within his statement.
- [33]Mr Fitzpatrick further relies on the Riskman Report as evidence that the patient was “hostile” and “abusive” towards him and other staff members.
- [34]Mr Fitzpatrick appears to be attempting to mount an argument with respect to the language used in allegation two. Relevantly, allegation two states, inter alia, “… that on 3 February 2022, whilst working with a patient fitting their moonboot…”. Mr Fitzpatrick argues that it was ultimately Mr O'Dare who fitted the moonboot (rather than Mr Fitzpatrick) and consequently allegation two can not be made out.
- [35]The difficulty for Mr Fitzpatrick with that argument is that the purpose for his attendance with the patient was to fit a moonboot. The language used in the allegation provides that context and is not incorrect.
- [36]Mr Fitzpatrick argues that the finding is not consistent with the Riskman Report which Mr Fitzpatrick contends supports a conclusion that the patient was “abusive” and “hostile” towards other staff.
- [37]Mr Fitzpatrick does not refer to any specific passage within the report to support his submission. On review of the Riskman Report, it is not readily apparent that the words “abusive” and “hostile” were used with respect to the patient. In any event, even if the patient had been hostile and rude (although no such findings have been made in this matter) that does not, in and of itself, provide an excuse for Mr Fitzpatrick’s conduct as found by the decision maker.
- [38]I do not consider the matters Mr Fitzpatrick raises with respect to allegation two support a conclusion that the decision was not fair and reasonable.
Allegation three
- [39]Mr Fitzpatrick contends that the substantiation of allegation three is unreasonable and relies on the fact that the patient visited the fracture clinic approximately one week after the incident. It appears from Mr Fitzpatrick's submissions that he argues that it could be inferred that the patient would not have visited the clinic again if she felt that Mr Fitzpatrick spoke to her in a manner meant to threaten or intimidate her.
- [40]Mr Fitzpatrick submits that the Department did not appropriately consider comments made by his colleagues about the patient. In particular, Mr Fitzpatrick submits that Mr Daley and Mr O'Dare would be in a position to confirm that the patient was rude and disrespectful when she attended the hospital one week later. Further, Mr Fitzpatrick states that “on or about 2 March 2022, Ms Close also orally expressed an opinion that the patient had an instant dislike to the Appellant on the day of the incident”.
- [41]Mr Fitzpatrick does not provide any evidence with respect to when these comments were allegedly made and what relevance they have to the alleged incident on 2 February 2022. On its face, it is difficult to comprehend what reference an attendance by the patient at the hospital, sometime after the incident, has to the inquiry with respect to the incident on 2 February 2022.
- [42]The matters Mr Fitzpatrick raise, seemingly post-date the incident and have no relevance to the allegations made. The matters Mr Fitzpatrick raise with respect to allegation three do not render the decision as not fair or reasonable.
Allegation four
- [43]Mr Fitzpatrick contends that the substantiation of allegation four was unreasonable on the basis that the Department placed undue weight on Ms Close's account of events. Mr Fitzpatrick states that the discussions that he had with Ms Close following her treatment of the patient were had to ensure that “instructions of the qualified medical physician were adhered to”.
- [44]Further, Mr Fitzpatrick submits that because of the “acrimonious” professional relationship he had with Mr Hutchins, the Department should not have considered Mr Hutchins' statement during their investigation.
- [45]In his submissions, Mr Fitzpatrick states that the Department did not properly consider his explanation for the “redness” in his face. Mr Fitzpatrick claims that the redness in his face could have been the result of irritation from his face mask, the fact that he wears thermals under his uniform or from his medication. I do not consider that the colour of Mr Fitzpatrick’s face was the determining factor with respect to this allegation.
- [46]The decisionmaker had regard to the account of the incident provided by Ms Close and ultimately preferred Ms Close’s account to that of Mr Fitzpatrick. The decision maker had regard to the evidence of Mr Hutchins and Mr Russel which corroborated aspects of Ms Close’s account. Relevantly Mr Russel, who had been some distance away down the hall, heard “raised voices” and recalled it sounding “very full on”. He further reports seeing Ms Close looking very distressed and close to tears. It was not appropriate for the decision maker to consider the corroborating evidence in the context of the complaint.
- [47]Mr Fitzpatrick does not detail the nature of the hostility between he and Mr Hutchins and the basis upon why he asserts Mr Hutchins’ evidence is unreliable. Mr Hutchins gives an account of observing Mr Fitzpatrick and then later having a conversation with Ms Close. There is no information provided by Mr Fitzpatrick that would support a conclusion that the reliance on the preferred available evidence rendered the decision not fair and reasonable.
- [48]I do not consider that allegation four disturbs the decision that is the subject of this appeal.
- [49]For the forgoing reasons, I consider that the decision was fair and reasonable.
Order
- [50]I make the following orders:
- Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
- Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 31 May 2022 be revoked.