Skelton v State of Queensland (Queensland Health)
[2023] QIRC 67
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- Skelton v State of Queensland (Queensland Health)[2023] QIRC 67
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Skelton v State of Queensland (Queensland Health)[2023] QIRC 67
Skelton v State of Queensland (Queensland Health)[2023] QIRC 67
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Skelton v State of Queensland (Queensland Health) [2023] QIRC 067 |
PARTIES: | Skelton, Charlie (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2022/699 |
PROCEEDING: | Public Service Appeal – Fair Treatment Decision |
DELIVERED ON: | 28 February 2023 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDER: | Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – notice to show cause letter issued – allegation substantiated – disciplinary finding of misconduct – whether decision to substantiate allegation was fair and reasonable – whether disciplinary finding of misconduct was fair and reasonable |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ss 187 and 194 |
CASES: | Aird v Department of Safety, Queensland Ambulance Service [2013] QIRC 185 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Briginshaw v Briginshaw (1938) 60 CLR 336 Coleman v State of Queensland (Department of Education) [2020] QIRC 032 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Mathieu v Higgins [2008] QSC 209 |
Reasons for Decision
Introduction
- [1]Mr Charlie Skelton ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as an OO4, Safety and Response Officer, Operational Services at the Princess Alexandra Hospital ('PAH') with Metro South Health ('MSH').
- [2]On 28 March 2022, the Appellant was issued with a notice to show cause regarding the following allegation:
Allegation one
On or around 23 January 2021, you used excessive force in the performance of your duties against a patient of the Princess Alexandra Hospital (PAH).
The particulars of Allegation one are as follows:
a) On 6 December 2021 concerns were raised by a public interest disclosure (PID) regarding your workplace conduct on 23 January 2021.
b) On 10 December 2021 the MSH Ethical Standards Unit (ESU) referred the matter to the Crime and Corruption Commission (CCC).
c) The CCC determined the allegation, if proven, meets the definition of corrupt conduct.
d) On 4 January 2022 the CCC referred the matter back to Metro South Health for appropriate management.
e) On or about 23 January 2021, you worked 14.00 hours to 22.00 hours as a Safety and Response Officer, PAH.
f) On or about 23 January 2021 at approximately 10.43PM you are observed on CCTV and body worn camera footage (BWC) entering the ground floor (blue lifts), PAH.
g) You approach a male patient who was obtaining food from the vending machine.
h) You asked the male patient "Hey mate, how is it going? what are you up to? where are you supposed to be?"
i) The male patient responds with "Good question mate"
j) Mr Ifeanyi (Ben) Anyakora, Safety and Response Officer also attended the blue lifts ground floor area.
k) You instructed the patient to pus the lid down to use the vending machine.
l) The male patient is verbally aggressive to you but does not raise his voice.
m) You inform the patient "okay it's time to go" and the patient walks to the main reception of the PAH to leave.
n) The patient responds with words to the affect of "I will fucking smash you."
o) You respond to state "hey, hey you don't make friends here", "You don't make friends here", "okay", "you don't make friends here", "all right", "understand".
p) You did not attempt to verbally de-escalate the situation further, but rather progressed to physically engaging with the male patient by way of an embrace.
q) You are observed to lift the patient and then throw him to the floor consistent with a 'body slam' action.
r) You then placed your hands on the side of the patients face and press down forcing his head against the floor.
s) Your physical contact with the male patient was not consistent with MAYBO practices.
- [3]On 15 April 2022, The Australian Workers' Union of Employees, Queensland provided a response on behalf of the Appellant.
- [4]On 19 July 2022, Ms Adrianne Belchamber , Acting Executive Director, PAH, issued a disciplinary finding letter to the Appellant advising that the allegation had been substantiated on the balance of probabilities and determined that, pursuant to s 187(1)(b) of the Public Service Act 2008 (Qld) ('the PS Act'), the Appellant was guilty of misconduct ('the decision'). Ms Belchamber further informed the Appellant that serious consideration was being given to impose the disciplinary action of a reprimand and a permanent reduction in classification level from OO4(4) to OO3(4).
- [5]By appeal notice filed on 8 August 2022, the Appellant appealed against the decision pursuant to s 194(1)(eb) of the PS Act.
Appeal principles
- [6]The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
- [7]The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision of Ms Belchamber dated 19 July 2022 was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.
What decisions can the Industrial Commissioner make?
- [8]In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
- (a)confirm the decision appealed against; or
- (b)set the decision aside and substitute another decision; or
- (c)set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Grounds of appeal
- [9]The Appellant appeals the decision on the basis that the Ms Belchamber:
- (a)relied upon subjective opinions and speculation in determining that excessive force was used;
- (b)gave insufficient weight to the threat of harm to the Appellant and his co-worker; and
- (c)gave insufficient weight to the Appellant's right to engage in self-defence in circumstances where he was at risk of serious physical harm.
Submissions
- [10]The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.
Appellant's submissions
- [11]The Appellant outlines a summary of the timeline of the incident on 23 January 2021 the subject of the allegation. The Appellant submits that physical intervention with the male occurred in the context of the following factors:
- The Appellant's assessment that the male's level of aggression and agitation appeared to be escalating
- The action taken by the male in quickly turning around, advancing towards the Appellant and raising his hand after the Appellant issued a clear boundary setting statement that "you don't make threats here"
- The Appellant's experience that the standard response provided to a boundary setting statement is usually an apology and de-escalation of aggression and agitation
- That the male appeared to be under the influence of an unknown substance
- That the male was possibly concealing a weapon
- [12]The Appellant contends that, given the presence of the above factors, the split-second decision made to engage in physical intervention was reasonable given the threat of harm to himself and his co-worker and submits that it was a reasonable exercise of self-defence to protect both himself and his co-worker from physical harm.
- [13]The Appellant submits that Ms Belchamber disregards the real fear held by the Appellant for his own safety, as well as that of his co-worker and in doing so, failed to give sufficient consideration to the Appellant's response.
- [14]The Appellant refers to cl 8.4(c) of Directive 14/20 Discipline which highlights the requirement for each finding of fact to be clearly explained on the balance of probabilities, reflecting the principle established in Briginshaw v Briginshaw.[5] The Appellant submits that the decision contains subjective and/or speculative statements of opinion as to the demeanour of the male and the conduct of the Appellant.
- [15]The Appellant highlights that the decision is unclear as to what specialist expertise Ms Belchamber relied upon in forming the opinions and whether she has completed MAYBO Work-Related Violence and Aggression Training.
- [16]The Appellant submits that, in the absence of direct evidence, it was not open to Ms Belchamber to infer that the male was not in an agitated state and, based on her own opinion, that the Appellant made a deliberate choice to revert to physical intervention.
- [17]The Appellant further submits that there is no direct evidence to support the conclusion that the male would not have turned around quickly and raised his hand had the Appellant not reacted to the male when he stated words to the effect 'I will fucking smash you.'
Respondent's submissions
- [18]The Respondent submits that, in considering whether the allegation was substantiated, Ms Belchamber was required to consider whether the Appellant's application of physical force was 'more than necessary, normal, or desirable in the circumstances.'
- [19]The Respondent submits that the footage, specifically the CCTV footage, shows a significant discrepancy between the size of the Appellant and the male patient. Further, the footage clearly shows that the Appellant made very little meaningful attempt to de‑escalate the matter and initiated physical intervention prematurely and in a manner which was disproportionate in the circumstances.
- [20]The Respondent submits that, in summary, Ms Belchamber:
- (a)outlined her consideration of the expected standards of conduct and behaviour as set out in the MSH procedure for Occupational Violence Management and Prevention ('the Procedure');
- (b)outlined that she turned her mind to the key principles of the Procedure, including that all physical intervention was to be carried out as a last resort when all attempts at communication and de-escalation have been unsuccessful and a risk continues to the safety of any person;
- (c)in taking into consideration of the Appellant's duties, had a reasonable expectation that he had the skill and ability to exercise sound, measured judgement and decision making in his approach to managing the male patient and minimising the situation in a reasonable way;
- (d)in determining that the Appellant had used excessive physical force in his duties, Ms Belchamber carefully viewed the CCTV and BWC (body worn camera) footage and considered the Appellant's response to the allegation which were outlined in the decision;
- (e)in explaining her reasons for making the disciplinary finding, outlined her consideration of the levels of physical and verbal aggression and agitation of the patient, her view of the level of threat posed to the Appellant and his need to engage in self-defence; and
- (f)provided a detailed outline of the review of each aspect of the footage, including descriptions of the Appellant's actions Ms Belchamber believed were reasonable or excessive or unreasonable.
Appellant's submissions in reply
- [21]In reply, the Appellant contends that 'size discrepancy' is not a factor that was relied upon by Ms Belchamber in substantiating the allegation and notes that the Respondent's submissions fail to articulate the basis upon which a 'size discrepancy' is relied upon to demonstrate that the physical use of force used was disproportionate to the level of risk posed.
- [22]The Appellant submits that the BWC:
- (a)demonstrates that the male patient threatened the Appellant when he stated, 'I will fucking smash you'; and
- (b)shows that the Appellant first responded to the threat of physical harm by issuing a clear boundary setting statement, being 'you don't make threats here'.
- [23]The Appellant highlights that, in response to his attempt at de-escalation, the patient quickly turned around and advanced towards the Appellant with his hand raised.
- [24]The Appellant outlines that the Procedure confirms that 'Metro South Health employees have a lawful right to defend themselves or others using reasonable force' and submits that:
- (a)given the verbal threat made by the patient, combined with his physical reaction to the statement 'you don’t make threats here', and the risk that the patient was carrying a concealed weapon in one of his two bags, the Appellant engaged in physical intervention to take immediate control of the situation for safety; and
- (b)the physical intervention initiated would not have occurred but for the patient's actions a short time after verbally threatening the Appellant by stating 'I will fucking smash you'.
Consideration
- [25]Consideration of an appeal of this kind requires a review of the disciplinary finding to determine if it was fair and reasonable in the circumstances.
- [26]Following the filing of the notice of appeal, the video recording of the incident obtained via CCTV and body worn camera (BWC) was shown to the Commission ('the video footage'). I have had the benefit of viewing the video footage, as have both parties, in considering this appeal.
- [27]In summary, the Appellant contends that the split-second decision he made to engage in a physical intervention with a male patient was reasonable given the threat of harm to himself and his co-worker. The Appellant also submits that it was a reasonable exercise of self-defence to protect both himself and his co-worker from physical harm. After viewing the video footage, I do not accept this characterisation of the conduct. The video footage does not indicate that there was a real threat of harm to the Appellant or his co-worker such that his physical intervention could be reasonably be justified as self-defence.
- [28]The Appellant submits that the decision was not compliant with cl 8.4 (c) of the Directive 14/20 Discipline which outlines the requirement for each finding of fact to be clearly explained on the balance of probabilities, reflecting the principle established in Briginshaw v Briginshaw.[6] The decision outlined the findings of fact in detail and demonstrated consideration of the Appellant's response before determining that the allegation was substantiated on the balance of probabilities.
- [29]The Appellant submits that Ms Belchamber did not outline the specialist expertise she relied upon in forming her opinions nor state whether she has completed MAYBO Work-related violence and aggression training. There is no requirement that Ms Belchamber outline such matters as neither the decision maker’s expertise nor training are relevant to the consideration of the allegation or disciplinary finding. Ms Belchamber considered the expected standards of conduct and behaviour as set out in the MSH procedure for Occupational Violence Management and Prevention, and more generally the principle that all physical intervention was to be carried out as a last resort when attempts at communication and de-escalation have been unsuccessful and a risk continues to the safety of any person.
- [30]Ms Belchamber's decision outlined a review of each aspect of the footage and specifically each of the Appellant's actions that she considered to be either reasonable or unreasonable and excessive. The decision outlined the reasons for substantiating the allegation with a detailed consideration of the level of aggression and agitation of the male patient, Ms Belchamber's view of the level of threat posed to the Appellant, and his need to engage in self-defence.
- [31]Ms Belchamber determined that the male patient was not in an agitated state as contended by the Appellant, stating:
In fact, it is my opinion that while the male exhibited some verbal aggression; he was generally compliant, not particularly aggressive or representing a risk to the safety of any person. There was no indication that his levels of agitation were rising or that he was angry, as you have claimed.
- [32]The Appellant contends that it was not open to Ms Belchamber to infer that the male patient was not in an agitated stated, nor that the Appellant made a deliberate choice to revert to physical intervention. The video footage of the incident shows no indication that the male was exhibiting erratic or agitated behaviour. Accordingly, it was open to Ms Belchamber to determine that the male patient was not in an agitated state. The conclusion that the Appellant made a deliberate choice was also reasonable in circumstances where the Appellant has not suggested that his actions were anything other than deliberate. Whilst the Appellant contends his actions were a ‘split-second reaction’, he does not contend the physical contact was accidental or beyond his control.
- [33]The Appellant queries the Respondent's reference to 'size discrepancy,' noting that this was not a factor relied upon by Ms Belchamber in substantiating the allegation. On the basis that it was not considered as a relevant factor in substantiating the allegation, no weight is given to the Respondent’s submissions on this point in determining the appeal.
- [34]The Appellant correctly contends that the Metro South Health employees have a lawful right to defend themselves and others by using reasonable force. However after viewing the video footage, and after considering the Appellant’s response, it was open to Ms Belchamber to determine that the Appellant did not use reasonable force to defend himself. The decision outlined Ms Belchamber's consideration:
You confirmed the male stated the words to the effect 'I will fucking smash you.' This comment was made as he was walking away. The male did not stop walking as he said these words; he continued in the direction of the main entrance.
While following the male; you then responded with 'you don’t make threats here.' It is at that point the male stops walking and turns around. At this time there is approximately two metres between your body and that of the male. You stated that you feared for yours and Officer Anyakora's safety, yet I note you continue to hold your ground. You did not make any attempt to recede, which I would have expected if you did in fact fear for your safety as you claimed.
You then stated that the male turned around very quickly, raised his hand in an aggressive manner whilst advancing towards you. I dispute your account. Whilst I agree he turned quickly and raised his hand; he dropped his hand as quickly as it was raised. At no time, did the male make any advance toward you, rather you advanced towards the male. The male's reaction was a direct response to your comments. Should you have not reacted to the male's comments, I am of the belief he would have continued towards the main entrance and left the building as he had been directed to do.
- [35]The Appellant contends that there is no direct evidence to support the conclusion that the male patient would not have turned around quickly and raised his hand had the Appellant not reacted to the male patient’s statement. The fact that the Appellant turned around and raised his hand immediately after the Appellant made the comment gives rise to a reasonable inference that it was the comment that prompted the male patient’s actions. In the absence of the Appellant's comment, it was more probable than not that the Appellant would have simply continued walking.
- [36]After viewing the video footage, I am satisfied that Ms Belchamber's conclusion was consistent with the evidence of the incident. Ms Belchamber described the video footage as showing the Appellant ''charging at the male, making contact/embracing him, then lifting him off the floor before throwing his body to the floor'' in a movement consistent with a body slam. This was an accurate description of the event.
- [37]The decision confirmed that following the substantiation of the allegation, the Appellant was determined to be guilty of misconduct pursuant to s 187(1)(b) of the PS Act.
- [38]Section 187 of the PS Act provides:
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
…
- (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
…
responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.
- [39]As noted by Deputy President Merrell in Coleman v State of Queensland (Department of Education), ('Coleman')[7] the PS Act does not provide any guidance as to what is meant by 'inappropriate' or 'improper' conduct apart from the definition in s 187(4).
- [40]In Coleman, the observations of Justice Daubney in Mathieu v Higgins ('Mathieu'),[8] when construing 'misconduct' were considered:
Justice Daubney thought the observations of Kirby P in Pillai v Messiter (No 2)[9] were instructive in construing 'misconduct' in s 10(a). In Pillai v Messiter (No 2), Kirby P, in addressing the meaning of the expression 'misconduct in a professional respect' in the Medical Practitioners Act 1938, said:
But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards for such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.[10]
Justice Daubney held that the decision of Kirby P assisted in the construction of 'misconduct' in the QAS Policy because:
- the words 'disgraceful' and 'improper', while included in the definition in s 10(a) as alternatives, should not be regarded as wholly independent and each term should be read as giving colour to the other; and
- the definition must be read in context in that 'misconduct' was listed as one form of 'unacceptable workplace behaviour' and which was expressly separated from other forms of sub-optimal workplace behaviour such as 'carelessness, incompetence or inefficiency'.[11]
Justice Daubney went on to conclude:
[26] These two considerations compel the conclusion that ‘misconduct,’ as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct. As the policy stands, ‘misconduct,’ to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.[12]
- [41]Deputy President Merrell opined the following with respect to the definition of misconduct as contained in s 187(4)(a) of the PS Act:
In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[13]
- [42]The conduct substantiated in this matter can reasonably be considered a deliberate departure from accepted standards in the workplace. Accordingly, it was open to Ms Belchamber to determine that the Appellant was guilty of misconduct.
- [43]The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[14]
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.[15]
- [44]Applying the principles outlined above, I do not consider that the decision lacks justification in the circumstances.
- [45]Based on the information before me, I am satisfied that the decision is fair and reasonable in the circumstances.
Order
- [46]I make the following order:
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.
[3] 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 PS Act.
[4] IR Act s 562B(3).
[5] (1938) 60 CLR 336.
[6] (1938) 60 CLR 336.
[7] [2020] QIRC 032.
[8] [2008] QSC 209 ('Mathieu').
[9] (1989) 16 NSWLR 197.
[10] Ibid 200 (Kirby P). See also Aird v Department of Safety, Queensland Ambulance Service [2013] QIRC 185, [55] (Deputy President Bloomfield).
[11] Mathieu (n 14), [25].
[12] Ibid [26].
[13] Ibid [62].
[14] [2019] QSC 170.
[15] Ibid [207]-[209].