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  4. Malcolm v State of Queensland (Queensland Health) - [2024] QIRC 97

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Malcolm v State of Queensland (Queensland Health)[2024] QIRC 97

Malcolm v State of Queensland (Queensland Health)[2024] QIRC 97

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Malcolm v State of Queensland (Queensland Health) [2024] QIRC 097

PARTIES:

Malcolm, Brent

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2024/9

PROCEEDING:

Public Sector Appeal – Appeal against a disciplinary decision

DELIVERED ON:

1 May 2024

MEMBER:

Caddie IC

HEARD AT:

On the papers

ORDERS:

  1. 1.The decision appealed against is set aside.
  2. 2.The decision appealed against is substituted with the following decision:
  • Allegations 1 and 2 are not substantiated.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where disciplinary findings made against the appellant – where appellant appeals the substantiation of allegations – whether the decision was fair and reasonable – whether the appellant engaged in the conduct subject of the allegations – where the decision-maker failed to inquire about relevant evidence known to him – where the decision lacked procedural fairness – where the decision was unfair and unreasonable – where the allegations are not substantiated.

LEGISLATION:

Code of Conduct for the Queensland Public Service (1 January 2011) cls 1.1, 1.5, 3.1

Crime and Corruption Act 2001 (Qld) ss 15, 48A

Industrial Relations Act 2016 (Qld) ss 562B, 562C, 564(3)

Public Sector Act 2022 (Qld), ch 3, ss 91, 129, 131, and 132

Public Sector Commission Directive 05/23 – Discipline (1 March 2023)

Queensland Health Human Resources Policy E10 (QH-POL-124) – Discipline (June 2021)

Work Health Safety Act 2011 (Qld) s 28

CASES:

Briginshaw v Briginshaw [1938] HCA 3; (1938) 60 CLR 336

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

Family and domestic violence leave review 2021 [2022] FWCFB 2001

Goodall v State of Queensland & Anor [2018] QSC 319

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2.

Jones v Dunkel (1959) 101 CLR 298

Kuhl v Zurich Financial Services [2011] HCA 11; (2011) 243 CLR 361

O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283

Perry v State of Queensland (Queensland Health) [2023] QIRC 348

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

Vega Vega v Hoyle [2015] QSC 111

Watson v Foxman (1995) 49 NSWLR 315

White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041

Reasons for Decision

  1. [1]
    Mr Brent Malcolm ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a security supervisor at the Gold Coast University Hospital, within the Gold Coast Hospital and Health Service ('GCHHS'). He has held the position of security supervisor at the Gold Coast University Hospital ('GCUH') since 2016 and held other security related roles with the agency since 2002.[1]
  1. [2]
    The Appellant was first suspended from work on full pay on 22 March 2023, following an incident which occurred at GCUH on 17 March 2023.[2]
  1. [3]
    By letter dated 9 August 2023 and delivered 11 August 2023,[3] Mr Malcolm was asked to show cause ('first show cause notice') as to why a disciplinary finding should not be made against him in respect of two allegations:
  1. 1.On 17 March 2023, at around 00:20 hours, you used excessive and/or unnecessary force towards the Patient [details redacted], when you unnecessarily pushed him, causing the Patient to fall to the ground.
  2. 2.On or around 17 March 2023, you falsified the Security Incident Report (SIS 119282) relating to the incident with the Patient.[4]
  1. [4]
    Mr Malcolm was advised that if the allegations were substantiated, he could be liable for the following possible discipline grounds in respect of each allegation (original emphasis):

Possible grounds for discipline

…

  1. a.Pursuant to section 91(1)(b) of the Act,[5] in that you may be guilty of misconduct, that is inappropriate or improper conduct in an official capacity, or inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed within the meaning of section 91(5)(a) of the Act.

[Both allegations]

Alternatively

  1. b.Pursuant to section 91(1)(h) of the Act, in that you may have contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, with the relevant standard applying to you under an approved code of conduct under the Public Sector Ethics Act 1994, being the Code of Conduct for The Queensland Public Service (the Code),[6] specifically:

Clause 1.1 of the Code, which provides as follows:

…

  • ensure our decision making is ethical

[Both allegations]

And/or

Clause 1.5 of the Code, which provides as follows:

…

  • 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 be different from our own.

[Allegation one only]

And/or

Clause 3.1 of the Code, which provides as follows:

…

  • adhere to the policies, organisational values and organisational documents of our employing agency.

[Both allegations]

  1. [5]
    The first show cause notice further noted under s 28 of the Work Health and Safety Act 2011 (Qld), the Appellant was required to take reasonable care that his acts or omissions did not adversely affect the health and safety of other persons.[7] It also referred to the Appellant's role description, key duties and accountabilities, and the Appellant's training history.
  1. [6]
    The Appellant provided a response to the first show cause notice on 22 August 2023.[8]
  1. [7]
    On 16 January 2024, Mr Grant Brown, Executive Director, People and Operations, GCHHS ('the decision-maker'), issued the Appellant with a disciplinary finding decision ('the decision letter').[9] The decision letter was received by the Appellant on 17 January 2024. It found that on the balance of probabilities, both allegations were substantiated. Mr Brown determined that due to his findings regarding allegation one, the Appellant is guilty of misconduct; and regarding allegation two, the Appellant may be guilty of misconduct.[10]
  1. [8]
    That is the subject of this appeal.
  1. [9]
    In the decision letter, the Appellant was advised that serious consideration was being given to the disciplinary action of termination of employment.  The Appellant was given seven days to provide a response as to why the proposed disciplinary action should not be taken.
  1. [10]
    By appeal notice filed on 24 January 2024, the Appellant appealed the disciplinary finding decision made by Mr Brown in the decision letter.
  1. [11]
    As no decision has been made in relation to the proposed disciplinary action this appeal is confined to whether it was fair and reasonable for Mr Brown to determine that the allegations were substantiated and gave rise to a discipline ground.
  1. [12]
    A Directions Order was issued on 25 January 2024 to hear the parties and to stay the decision until the determination of the appeal or further order of the Commission.
  1. [13]
    Further Directions regarding the Appellant and Commission's access to CCTV and BWC footage were issued on 31 January 2024 and 19 February 2024 respectively.
  1. [14]
    In correspondence dated 27 February 2024, the Commission requested further information and filed material.
  1. [15]
    Further correspondence dated 6 March 2024 from the Commission requested clarification of questions arising from previous filings and information provided.
  1. [16]
    A mention was held on 20 March 2024 to discuss the additional material and confirm which material the Commission considered relevant to the appeal.

Appeal grounds

  1. [17]
    The Appellant appeals against the decision on the basis that the findings are unfair and unreasonable.
  1. [18]
    In relation to allegation one, the Appellant in summary contends the decision-maker:
  • Failed to obtain or give necessary weight to relevant evidence from staff members directly involved in and/or witness to the incident.
  • Incorrectly preferred evidence of clinical staff members who were not involved in and/or witness to the incident.
  • Gave too much weight to the conclusions drawn by WHS Education Manager Matthew Jackson who first reviewed the available footage.
  • Erred in dismissing the version of the Appellant when that version is supported by the BWC and CCTV footage.
  • Failed to provide information relied upon to the Appellant.
  • Gave too little weight to the threat presented by the Patient and the risk to other patients, staff and equipment, necessitating intervention.
  • Made findings unsupported by objective evidence, and not accounting for all relevant material, in contravention of Human Resources Policy, Discipline E10.[11]
  1. [19]
    In relation to allegation two, the Appellant in summary contends the decision-maker:
  • Erred in relying on the disciplinary finding for allegation one.

Outcomes sought

  1. [20]
    The Appellant seeks that the decision in relation to both allegations be set aside.[12]
  1. [21]
    The Respondent submits that the decision appealed against should be confirmed as the disciplinary finding decision was fair and reasonable, having regard to the evidence available. The Respondent also submits that the show cause process was undertaken in a procedurally fair way, having regard to applicable statutory requirements.[13]

Is the Appellant entitled to appeal?

  1. [22]
    Section 131 of the Public Sector Act 2022 (Qld) ('PS Act') outlines the categories of decisions against which an appeal may be made. Section 131(1)(c) of the PS Act provides that an appeal may be made against 'a disciplinary decision'. Section 133 of the PS Act provides a public sector employee or former public sector employee aggrieved by the decision is entitled to appeal under a Directive.
  1. [23]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) ('IR Act') requires an appeal to be lodged within 21 days after the day the decision appealed against is given.
  1. [24]
    I am satisfied that the decision is one that may be appealed against, that Mr Malcolm is entitled to appeal, and that the appeal was lodged within the required time.

Appeal principles

  1. [25]
    Section 562B(3) of the IR Act provides that the appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [26]
    Appeals under ch 11 pt 6 div 4 of the IR Act are not by way of re-hearing.[14] Findings made in the decision which are reasonably open to the decision-maker are not expected to be disturbed on appeal.[15]

What decisions can the Commission make?

  1. [27]
    Section 562C of the IR Act provides:

562C Public service appeals – decision on appeal

…

  1. (1)
    In deciding a public service appeal, the commission may —
  1. (a)
    confirm the decision appealed against; or

…

  1. (c)
    for another appeal— set the decision aside, and substitute another decision or return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant legislative framework and other instruments

The Public Sector Act

  1. [28]
    With regards to the allegations, Mr Malcolm was found liable for discipline by Mr Brown under s 91(1)(b) and 91(5)(a) of the PS Act. It relevantly provides:

91 Grounds for Discipline

  1. (1)
    A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

…

  1. (b)
    been guilty of misconduct

…

  1. (5)
    In this section—

misconduct means—

  1. (a)
    inappropriate or improper conduct in an official capacity;

…

  1. [29]
    In Coleman v State of Queensland, Merrell DP provides analysis of the meaning of misconduct in the since-repealed Public Service Act 2008 (Qld). Merrell DP concludes (emphasis added):
  1. [62]
    In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[16]
  1. [30]
    The modern provision in s 91(1)(b) of the Public Sector Act 2022 (Qld) contains identical language which logically maintains the same meaning.

The Discipline Directive

  1. [31]
    The Discipline Directive (05/23) was included as an attachment to the first show cause notice as a document to be considered by the decision-maker in relation to the allegations.[17]
  1. [32]
    The Directive sets out the procedural steps for the requirements to commence a discipline process, a show cause process, disciplinary findings, and disciplinary action, and the relevant considerations for the decision-maker.[18]
  1. [33]
    Clause 7 of the Directive provides the requirements to commence a discipline process:
  1. 7.1Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.
  2. 7.2Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:
  1. a.the seriousness of the employee's personal conduct and/or work performance, and

…

  1. c.whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or any other regulatory agency for assessment, and

…

  1. g.whether further information is required to make a decision to commence a disciplinary process, and
  2. h.for a breach of relevant standard of conduct under section 91(1)(h), that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter.
  1. [34]
    Clause 9.3 of the Directive outlines the required show cause process for disciplinary findings:
  1. 9.3Show cause process for disciplinary finding
  1. 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)
  2. b.written details of each allegation in clause 9.3(a) must include:
  1. i.the allegation
  2. ii.the particulars of the facts considered by the chief executive for the allegation
  3. iii.the disciplinary ground under section 91 of the Act that applies to the allegation
  1. c.when providing the written details required at clause 9.3, a chief executive should not include more than two possible disciplinary grounds for the same allegation. In making a disciplinary finding at clause 9.4, a chief executive must choose the most suitable ground for discipline as no more than one disciplinary ground is to apply to an individual substantiated allegation
  2. d.a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence
  3. e.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.

…

  1. [35]
    Clause 9.4 of the Directive sets out the requirements in coming to a disciplinary finding decision (emphasis added):
  1. 9.4Decision on grounds (disciplinary finding)
  1. a.the 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
  2. 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
  3. c.for each finding in clause 9.4(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
  4. 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. The employee should also be informed of the time limits for starting an appeal provided for in the Industrial Relations Act 2016 (IR Act) and the directive relating to appeals
  5. 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 9.5) and/or management action implemented, or to take no further action. No more than one disciplinary ground is to apply to an individual substantiated allegation

…

The Queensland Health Discipline Policy

  1. [36]
    Clause 9.4 of the Directive sets out the requirements in coming to a disciplinary finding decision. The Queensland Health HR Policy E10,[19] which was attached as a relevant document to the first show cause notice, sets out a framework of considerations for the decision-maker in Queensland Health. It largely summarises the legislative and Directive requirements, however relevantly adds, "Allegations must be supported by objective evidence which has taken into account all relevant materials"[20] (emphasis added).

Approach to the appeal

  1. [37]
    The appeal requires me to consider whether it was fair and reasonable for the decision-maker to determine that the allegations were substantiated and gave rise to a ground for discipline.
  1. [38]
    This involves a consideration of the decision arrived at having regard to the information available to the decision-maker at the time the decision was made, as well as the process followed.
  1. [39]
    In determining this appeal, I have reviewed and considered all the filed materials as follows:
  1. 1.Notice of appeal and attached decision letter – filed 24 January 2024.
  2. 2.Appellant's submissions and attachments – filed 13 February 2024.
  3. 3.Respondent's submissions – filed 19 February 2024
  4. 4.Appellant's submissions in reply and attachments – filed 26 February 2024.
  5. 5.CCTV (video only) and body-worn camera (BWC) (video and audio) footage filed by the Respondent – filed 26 February 2024.
  6. 6.Further material filed by the Respondent at the request of the Commission as material before the decision-maker, including the original show cause letter, witness statements and other relevant attachments; and the Appellant's show cause response – filed 5 March 2024; and the Appellant's role description and Organisational Assignment History – filed 6 March 2024.[21]
  1. [40]
    Given the significance of the CCTV and BWC footage in the disciplinary process, the findings of the decision-maker; and the factual disagreement evident in some key areas, I conducted a detailed examination of the footage.
  1. [41]
    I have outlined below the chronological sequence of events captured from my review across the video files. Significant detail is provided for the three-minute period first outlined in the original show cause letter underpinning the allegations and responses against which the findings were ultimately made.[22] Where it has been possible due to other material filed in the appeal to assign an identity to a relevant person depicted in footage, I have done so.
  1. [42]
    Later in this decision where I refer to or rely on any part of this sequence the relevant part or parts will be directly referenced by paragraph number. 

Commission Footage Review

Pre-incident footage on the evening of 16 March 2023 and the early morning of 17 March 2023

  1. [43]
    The Patient (details redacted in this decision) was wheeled into the GCUH Emergency Department (D Block LG EME Amb Waiting) by a paramedic at 22:24 on 16 March 2023.[23]
  1. [44]
    From the Patient's arrival until 00:20:31 on 17 March 2023, the footage shows the Patient was at various times uncooperative, verbalising, gesturing, physically resistant and wandering from their bed.[24]
  1. [45]
    The CCTV footage shows at various times police, paramedics, clinical staff and Security Officers, including the Appellant, engaging with the Patient. Other patients in the Ambulance Waiting Corridor can be seen being moved out of that corridor in the footage.[25]

The critical three minutes

Minute one

  1. [46]
    At 00:24:08 CCTV footage shows the Patient in a hallway (D Block LG EME Public Exit) turning and raising his fists in a boxing pose against a person not in frame. The right-hand fist is clenched and drawn back while the other hand can be seen pointing and the Patient can be observed verbalising.[26]
  1. [47]
    It is agreed the person not in frame who is the subject of the Patient conduct, is Assistant in Nursing Hassan ('the AIN'), who was assigned to monitor the Patient.[27]
  1. [48]
    At 00:24:21, the Patient drops the clenched boxing hand to adjust his pants.[28]
  1. [49]
    At 00:24:24, the Patient turns his head away from the AIN as the office door behind him opens and at the same time a clinical staff member comes around the corner towards that door. A security officer appears in the doorway at 00:24:25 looking at the Patient.[29] It is agreed this is security officer Shay Slennett. ('Officer Slennett').[30]
  1. [50]
    There is a verbal interaction between Officer Slennett and the Patient that ends in the Patient raising their middle finger at Officer Slennett at 00:24:31. The finger comes down at 00:24:35 as Officer Slennett turns back into the office, and the clinical staff member returns to where they had emerged from.[31]
  1. [51]
    At 00:24:38, the Patient turns back towards the security office door and Officer Slennett can be seen getting something from inside the office. The Patient can be seen verbalising and pointing until around 00:24:45.[32]
  1. [52]
    At 00:24:47, Officer Slennett steps out of the office with gloves in his hand moving in the direction of the Patient.  Officer Slennett and the Patient are verbally engaging.[33]
  1. [53]
    At 00:24:53, a second Security Officer ('SO2') steps out of the office and puts on gloves. Officer Slennett and the Patient continue to be verbally engaging.[34]
  1. [54]
    At 00:24:56, the Patient is seen gesturing with his right arm outstretched moving his arm and hand towards and away from himself.[35]
  1. [55]
    Also at 00:24:56, CCTV footage shows the Appellant walking through the Ambulance Waiting Corridor and standing near the junction with the Public Exit Corridor looking in the direction of the interaction between the Patient and Officer Slennett.[36] The Appellant can be seen turning his head back and forth over the next ten seconds as he is also watching an interaction occurring to his diagonal right between another patient and a clinical staff member.[37]
  1. [56]
    It is agreed the clinical staff member involved in the separate discussion with a patient[38] is Clinical Team Coordinator (CTC) Kylie Ivkovic ('Nurse Ivkovic').[39]

Minute two

  1. [57]
    At 00:25:00, the Patient can be seen continuing to gesture and engage verbally with Officer Slennett.[40]
  1. [58]
    At 00:25:11, the Appellant looks down the corridor again. By 00:25:16 the Appellant is moving towards the Patient and Officer Slennett interaction.[41] At 00:25:23 a third security officer ('SO3') is seen walking through the Ambulance Waiting Corridor towards the Public Exit Corridor and the interaction.[42] Before moving out of frame, SO3 also looks in the direction of the Nurse Ivkovic and patient discussion.
  1. [59]
    At 00:25:16, the Patient can be seen stumbling very slightly, steadying himself by leaning against a stainless-steel trolley parked in the hallway, whilst continuing to engage verbally with Officer Slennett.[43]
  1. [60]
    At 00:25:21, the Patient starts to turn towards the direction of the Ambulance Waiting Corridor.[44]
  1. [61]
    At 00:25:24 the Patient starts walking out of frame, followed by Officer Slennett, who is still putting on his gloves. Then, at 00:25:40, SO2 moves slowly in that direction, disappearing from frame at 00:25:51.[45]
  1. [62]
    At 00:25:52, the Patient is seen on BWC footage walking in the direction of the Ambulance Waiting Corridor where his bed is.[46] The Patient is talking and pointing his finger at his own head and up towards the ceiling. The Appellant is behind him on the right. The AIN is behind him but slightly on his left. SO3 is standing to the side on the left. Officer Slennett, wearing the BWC the footage is sourced from, is behind the Appellant and the AIN.
  1. [63]
    At 00:25:54, Officer Slennett says to the Patient "What are you mate?" This causes the Patient to look around at 00:25:57, and say "What?" This is followed by the Patient saying, "Who said, who said what?" The Patient then comes to a complete stop with his body facing side-on to the Appellant at 00:25:59.[47]

Minute three (including the fall and post-fall)

  1. [64]
    The Appellant then says, "Go sit down," at 00:26:00.[48] The Patient, still stopped and looking directly at the Appellant, then says, "Don't call me mate," at 00:20:01, followed by "I aint your mate," at 00:26:03.[49]
  1. [65]
    The Appellant says, "Certainly not, certainly not," at 00:26:05. The Patient responds, "Shit yeah," at 00:26:06.[50]
  1. [66]
    At 00:26:07 the Appellant responds further with "Go sit down dickhead,"[51] and can be seen in CCTV footage through the glass reflection, pointing as he says this.[52] The Patient responds by saying "And don't point."[53]
  1. [67]
    At 00:26:08, the Appellant can be seen moving slightly towards the Patient, and the Patient then says "Hey, hey!" The Patient lifts his arm above his head and starts curling it back. Officer Slennett can be heard saying loudly and quickly, "Hey, hey hey, hey hey hey," in response to the Patient's arm lifting, and he also brings his hand forward.[54]
  1. [68]
    At 00:26:08, the Appellant lifts his right arm, palm outstretched. Officer Slennett's hand is also seen moving towards the Patient. The Patient's right-hand curls into a fist.[55]
  1. [69]
    At 00:26:09.107, Officer Slennett's right hand and both of the Appellant's hands can be seen connecting with the Patient's right shoulder and upper arm. The Appellant's hand is gripping the Patient's shoulder.[56]

The fall

  1. [70]
    The fall occurs within a single second:
  • 00:26:08.967 – the female patient in discussion with Nurse Ivkovic turns her head to view the incident. It is unclear whether Nurse Ivkovic has turned her head at this point, as her head is obscured by a computer screen in the CCTV footage facing the glass door.[57]
  • 00:26:09.167 – the Patient is first visible falling in the glass reflection CCTV footage.[58]
  • 00:26:09.257 – the Appellant's hands are no longer holding the Patient, but his arms are still outstretched. Officer Slennett's arms are down and out of sight.[59]
  • 00:26:09.307 – the Patient's knee and left hand hit the floor.
  • 00:26:09.357 – the Patient's left elbow hits the floor.
  • 00:26:09.407 – the Patient's left hip and remainder of his left leg hits the floor. The patient's right leg is crossed over the left leg.
  • 00:26:09.457 – the Patient's left shoulder hits the floor. The Patient's right arm is behind his back. The leg crossover is clearer.
  • 00:26:09.507 – the Patient's body starts to slide.
  • 00:26:09.607 – the Patient's head hits the floor.[60] A bang sound can be heard on BWC footage.[61] There is the first clear view of Nurse Ivkovic and she is putting her hands over her eyes.[62]
  • 00:26:10.107 – the Patient stops sliding, having travelled a very short distance from where the fall commenced.[63] A voice exclaims "Oh shit!"

Post-fall

  1. [71]
    At 00:26:11, after the Patient fell, his arms remains raised towards the ceiling. The Patient then splays his arms out wide and stays still but can be seen breathing deeply. He can be heard saying "Oh no, oh no."[64] At the same time, the Appellant's hands lower to beside his hips, and he walks forward a few steps before standing still and looking at the patient. Other security officers and the AIN do the same.[65]
  1. [72]
    At 00:26:17, an unidentified clinical staff member says "Okay, stand back," as clinical staff begin to assess the Patient for treatment post-fall.[66] At 00:26:24, a group of clinical staff members and another security officer walk into the CCTV frame.[67]
  1. [73]
    A conversation follows between clinical staff and security officers which can be heard in the BWC footage.[68] At 00:26:29, an unidentified clinical staff member ('CS1') says "He's gonna need a scan."[69]
  1. [74]
    At 00:26:32 Officer Slennett can be heard saying "He just went to, strike," referring to the Patient.[70] 
  1. [75]
    One of the clinical staff members says in response to CS1, "I know. It was a really good head strike, like that."[71] It is agreed this clinical staff member speaking is Nurse Caroline Sweeney.[72]
  1. [76]
    Another unidentified clinical staff member ('CS2') then comes into frame at 00:26:44 and inquires "Who is that?" Nurse Sweeney replies stating the Patient's name. Several people nod.[73]
  1. [77]
    At 00:26:58, CS2 asks, "Caroline, you saw it?" to which Nurse Sweeney responds, "Yeah, I just saw him, come flying like…past."[74]
  1. [78]
    At 00:27:00, the Patient says "Yeah, these bastards pushed me."[75]

Allegation One

  1. [79]
    I will now turn to what the parties say in relation to each allegation and my consideration of those submissions:

Allegation 1

On 17 March 2023, at around 00:20 hours, you used excessive and/or unnecessary force towards the Patient [details redacted], when you unnecessarily pushed him, causing the Patient to fall to the ground.

The Respondent's submissions

  1. [80]
    In the decision letter, the decision-maker provides a summary of the Appellant's response to the first show cause notice including the Appellant's version of events, response to the witness statements, and disagreement with the assessment of the footage made by Mr Andrew Jackson. This is followed by findings that point to factual disagreements about the incident and rejection of the Appellant's contentions about flaws in the process.
  1. [81]
    The decision-maker in his findings states he has considered all the material before him, including the Appellant's submissions and has determined that allegation one is substantiated on the balance of probabilities on the following basis (emphasis added in bold, original emphasis in italics):
  • You admit there was contact with the patient.
  • I have taken into account your submissions in regards to the incident and I have also carefully considered the evidence of the CCTV, BWC footage and witness stattements (sic.) and I am not satisfied that your version of events is supported by evidence made available to me.
  • I reject your observation that the patient was (sic.) raises his arm in a position to strike. Upon reviewing the BWC footage, it does not appear that the patient raises his arm in a position to strike. While it is evident that the patient was verbalising, I do not percevie (sic.) the situation as one where the patient posed a direct threat at that moment.
  • I endorse Mr Jackson's observation that the applied push applied (sic.) was inappropriate, as I agree with the following statements:
  • The patient was 'moving in the required direction'.
  • You were 'too close to [the patient] and does [not] have a sufficient reactionary gap'.
  • You attempted 'to grab [the patient], resulting in [the patient] pulling away defensively'.
  • 'Due to [the patient's] perceived frailty, age and lack of overt aggression my opinion is that the initial arm grab and the resultant push by PSO Malcolm is not appropriate force and could be deemed excessive.'[76]
  1. [82]
    Importantly, the findings also outline the relative weight given by the decision-maker to various parts of the material in coming to his decision (emphasis added):
  • I am to consider whether you pushed the patient which resulted in him falling to the ground. I am satisfied that all witness statements unanimously confirm the patient's forceful descent to the ground. Considering the details presented in the statements, I firmly believe that Ms Ivkoviks's (sic.) account carries more weight. As a trained clinician with a direct line of sight between you and the patient, her testimony is crucial in forming my opinion on this matter.
  • While I acknowledge your support of Mr Hassan's statement, it is important to note that, as an Assistant in Nursing, he does not have the training to handle or recognise aggressive behaviour in the Health Service, unlike a Security Officer or a trained Clinician. This highlights the significance of considering insights from individuals with specific expertise in dealing with such situations.[77]
  1. [83]
    This is further addressed in the Respondent's submissions (emphasis added):
  1. 12.… it is clear in the second show cause letter[78] that the statements of Ms Sweeney and Ms Hardy were not solely relied on by Mr Brown in substantiating the allegations. Rather, Mr Brown was persuaded by and ultimately relied on the CCTV footage and body worn camera (the video footage), the evidence of Mr Matthew Jackson, Queensland Health Educator and Ms Kylie Ivkovic, Clinical Team Coordinator, Clinical Response Unit, which is discussed further below.
  2. 13.With respect to Allegation One, Mr Brown carefully considered all the material before him which included Mr Malcom's (sic.) submissions, the video footage of the incident, as well as witness statements from clinical staff who were present during the incident.[79]
  1. [84]
    Filed material shows that witness statements were taken by Ms Maree McKay, Service Director People and Operations, in April-May 2023 from:
  • Clinical Team Coordinator (CTC) Kylie Ivkovic;
  • Acting Clinical Nurse Consultant (CNC) Tracey Hardy;
  • Registered Nurse (RN) Caroline Sweeney; and
  • Assistant in Nursing (AIN) Syed M Ibne Hassan (unsigned).
  1. [85]
    No statement was sought from Officer Slennett; who was wearing the BWC; or any other security officer present during the incident.[80]

The Appellant's submissions

  1. [86]
    The Appellant contends that while there was contact with the Patient, there was no push, and the contact was in direct response to his assessment of an imminent threat. That threat was in the form of the Patient raising his arm in what the Appellant considered to be a prelude to being struck. The assessment was based on what was happening and his knowledge of the Patient pre-incident.
  1. [87]
    In submissions, the Appellant provides his outline of events and attaches still shots from the relevant parts of the footage in support of that outline (emphasis removed):
  1. 6.I was later escorting the patient to a seat with PSO Slennett and AIN Hassan ('BM 3'). The patient abruptly stops in reaction to a comment of PSO Slennett. The patient turns and faces me and directs his anger towards me.
  2. 7.I directed the patient to sit down and pointed to the bed near the ED doors. This was because of the matters known to me pre-incident and the patient was a risk to the safety of others, property, and himself, and there was another high-risk incident occurring with CTC Kylie Ivkovic.
  3. 8.I placed my left hand to the side of the patient and gently guide (sic.) him in the direction I was pointing by applying pressure to the patient's right arm. This was an appropriate and proportionate use of force.
  4. 9.The patient immediately raises his right arm across his body in an upward motion. I believed the patient was about to strike me in the head in a backhand motion ('BM 4') with potential for bodily harm.
  5. 10.I attempted to grab the patient's right arm as the patient retracts his right arm back and down. The patient raises his right arm again in a position where I believed he was going to strike me ('BM 5'). At that time I am reaching and trying to secure the arm ('BM 6').
  6. 11.I grabbed the patient's right upper arm in an underhand grip with my left hand ('BM 7', my left thumb is visible) and placed my right hand against the left shoulder of the patient at the same time ('BM 8). This was an appropriate and proportionate use of force. At this point the patient falls, and I am trying to hold him ('BM 9').
  7. 12.There was no push or shove. This was a messy grapple that ordinarily occurs when multiple limbs are moving in an attempt to gain control. When the patient falls his own body weight momentum causes him to move slightly across the floor.[81]
  1. [88]
    In addition to denying the factual basis of the allegation, the Appellant questions the strength, objectivity and reliability of the evidence relied upon; as well as the failure of the decision-maker to properly consider all relevant information, including the failure to obtain a statement from Officer Slennett:
  1. 13.I submit the evidence of PSO Slennett was relevant and the decision-maker would have been reasonably expected to obtain his statement. To date the reason for not obtaining the statement is unexplained. I submit the Industrial Commissioner should draw an adverse inference that QH did not obtain a statement from PSO Slennett because he would have likely supported my version of events and that would have been consistent with the observations of Mr Hassan.[82]
  1. [89]
    The invitation to draw a Jones v Dunkel[83] inference is addressed later in this decision.
  1. [90]
    While there is no statement from Officer Slennett, there is relevant material that was before the decision-maker. This includes the CCTV and BWC footage and audio, and the contents of a text message exchange between the Appellant and Officer Slennett sent between 1:03 am and 1:13 am. This is included in the Appellant's response to the first show cause notice and attached to submissions, reproduced below (emphasis removed):
  1. 13.In text messages ('BM 21') exchanged between me and PSO Slennett on 17 March 2023 at 1:00am, PSO Slennett states:
  1. a."Mate just a thought speak to that AIN special and get his full details just for a witness if needed, I did see [the patient] on the cameras raising his fist to him as he was trying to abscond near our office. So that would be twice he displayed unpredictable threatening behaviour towards staff", and
  2. b."That's great, given the circumstances and the fact he raised his fist and lunged towards you. And as you know it is completely justified to defend yourself pushing someone back. Just really looked bad from nurses other angles. But that AIN agreed with our actions which is good", and
  3. c.I respond:
  1. i."Wasn't a push just deflected his arms."[84]
  1. [91]
    Officer Slennett is heard on BWC footage[85] saying 'he just went to strike' referring to the Patient.
  1. [92]
    The Appellant submits that the reactions by Officer Slennett confirm the Appellant's version that there was a genuine threat in that moment. These reactions included his verbalisation of "Hey, hey hey, hey hey hey" during the incident, his discussion with clinical staff members following from the incident, and the details in the text exchange.[86]
  1. [93]
    The Respondent submits in relation to the text message that Officer Slennett is "merely offering reassurance, especially where he states that it is completely justified to defend yourself pushing someone back."[87]

Consideration

  1. [94]
    The specific conduct underpinning this allegation occurred within 18 seconds.[88]
  1. [95]
    The two security staff directly engaged with the Patient were the Appellant and Officer Slennett. The AIN was also a participant but he did not speak.
  1. [96]
    It is not disputed that the Patient was a frequent visitor at the ED, was known to staff, and was generally intoxicated and abusive when presenting at the ED – including on the relevant dates for this matter.[89]
  1. [97]
    It also is not disputed the Patient fell, nor is it disputed that the Appellant made contact with the Patient adjacent to the fall.
  1. [98]
    The fall and the contact are not in themselves proof of a push; or if there was a push, proof of whether it was in the circumstances unnecessary and/or excessive. These are critical questions for the reasonable substantiation of allegation one.
  1. [99]
    In coming to a disciplinary finding decision, the decision-maker must review all relevant material and make their decision based on the balance of probabilities. "Allegations must be supported by objective evidence which has taken into account all relevant material"[90] (emphasis added).
  1. [100]
    The Discipline Directive provides further guidance on the standard for decision-makers:

Balance of probabilities refers to the civil standard of proof. For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:

  • relevance of the evidence to the allegations
  • seriousness of the allegations
  • inherent likelihood or improbability of a particular thing or event occurring
  • gravity of the consequences flowing from a particular finding.[91]

The evidence relied upon

  1. [101]
    The decision-maker has preferred the evidence provided by Nurse Ivkovic and Mr Jackson along with his own review of the footage when coming to his decision. He has discounted the evidence provided by the AIN directly involved in the incident and has provided no explanation for not seeking a statement from Officer Slennett.[92]
  1. [102]
    Nurse Ivkovic was one of the senior clinical staff members present in the ED during the incident. She went 'straight into action'[93] to assess the Patient and the situation following the fall.
  1. [103]
    After the Patient was attended to, Nurse Ivkovic talks to the Appellant, the AIN, and Officer Slennett. This is evident in the CCTV footage at 00:30:25 where the Appellant and the AIN approach and stand with Nurse Ivkovic followed by Officer Slennett at 00:30:31.[94] This is confirmed through witness statements, the Riskman Report, and submissions.[95]
  1. [104]
    It is reasonable for the decision-maker to give weight to the information gathered by Nurse Ivkovic in her coordination of that process. It is also reasonable to give weight to her eyewitness account but only to the extent of what she has witnessed. The decision-maker considers Ms Ivkovic's version of events to be crucial in him coming to his decision.
  1. [105]
    The Riskman Report was completed by Nurse Ivkovic, and sent to the Riskman Notification email address at 3:12 am on March 17th 2023.[96]
  1. [106]
    The report stated "Pt fell backward after deflective push from PSOs who pt had threatened to swing at with fists (sic.) (emphasis added)."[97]
  1. [107]
    The report then provides details (emphasis added):

Pt has been in ED this PM since 2230-multiple code blacks in dept and staff tolerating pt behaviours (pt well known to ED staff) PT refusing cares, telling staff to f* off etc, pt escalating other pts surrounding him. History of Incident from AIN special Syed M Ibne Hassan, Northern Nursing =Pt was taken to toilet by 1:1 special and then went to turn left to WR exit then special redirected pt and pt lifted his fists to hit out at special. PSOs came out of office area and redirected pt back to triage area where pt trolley was. Pt was then aggressive to PSOs and also lifted his fists to swing at supervisor who deflected this with two hands to push pt away from him. CTC did not witness this but saw pt fall in hall onto back with loud noise on impact. No LOC and pt stating he had been pushed and he would sue us. Soft Collar placed and lift sheet used to lift pt to trolley; nil bleeding or injury evident to pt from fall. Pt moved to R1 for further assessment. Refusing vitals. Pt continued normal aggressive behaviour post incident. PSO cameras = 24+19+1[98]

  1. [108]
    The signed statement of Nurse Ivkovic dated 22 May 2023 relevantly provides (emphasis added):
  1. 6.The shift was busy in the Emergency Department (ED) with a lot of Code Blacks that night.
  2. 7.At around 0020hrs, on Saturday morning I had been dealing with a Code Black and the Security Officers had been stood down.
  3. 8.I recall getting a patient sticker for the patient involved in the Code Black from the Administration Officer at the triage counter and I could see down the corridor towards Resus 3. [the Patient's] trolley was ramped in this corridor.
  4. 9.When I looked up towards the triage corridor, from my angle across from the ED triage AO, I saw the Patient fall backwards as a result of Security Officer Malcolm making contact with his hands outstretched towards [the Patient's] chest. From my angle I could see both arms outward but only that the left made contact as I could not see the right due to my angle.
  5. 10.I could see the left side of Security Supervisor. Malcolm's body.
  6. 11.The patient then fell backwards and I heard his head hit the ground.
  7. 12.[The Patient] fell straight down, he did not lose consciousness and he continued to be verbally aggressive which is normal for [the Patient].
  8. 13.It was like viewing this in slow motion and I recall putting both hands over my eyes when it happened and then straight into action to assist [the Patient].
  9. 14.Once the body worn cameras were off at my direction, I spoke with Security Supervisor. Malcolm.
  10. 15.I can confirm that Security Supervisor. Malcolm looked shocked.
  11. 16.Security Supervisor. Malcolm explained that he had used a sweeping motion which he demonstrated to me, to deflect [the Patient] "who went to strike me" (original emphasis), which Mr Syed M Ibne Hassan, Assistant in Nursing (AIN) who was nurse specialling him agreed with.[99]
  1. [109]
    The decision-maker stated that Nurse Ivkovic is a trained clinician with a direct line of sight.[100] This is disputed by the Appellant, who in his submissions argues that Nurse Ivkovic was, at all relevant times, engaged in an argument with another patient, and therefore was not looking at the incident.[101]
  1. [110]
    I do not fully accept either submission.
  1. [111]
    By Nurse Ivkovic's own account contained in the Riskman report, she did not see the events leading up to the fall other than seeing the fall itself. In her statement, however, she attests she also saw the Appellant's arms outstretched towards the Patient's chest immediately preceding the fall. In her statement, Nurse Ivkovic states the fall was "as a result of" the outstretched arms. However, she acknowledges her view was limited by her angle, so she could only attest that the left arm made contact.
  1. [112]
    While the Appellant is correct that Nurse Ivkovic was engaged in what looks like a heated exchange with another patient, that exchange ended in the latter moments of the incident, which would have allowed Nurse Ivkovic to provide a limited account.
  1. [113]
    I observe the following in my review of the footage:
  • 00:26:08.967 – the female patient in discussion with Nurse Ivkovic turns her head towards the incident. It is unclear whether Nurse Ivkovic has turned her head at this point, as her head is obscured by a computer screen in the CCTV footage facing the glass door.[102]
  • 00:26:09.167 – the Patient is first seen falling in the glass reflection CCTV footage.[103]
  • 00:26:09.257 – the Appellant's hands are no longer holding the Patient, but his arms are still outstretched. Officer Slennett's arms are down and out of sight.[104]
  • 00:26:09.607 – the Patient's head hits the floor.[105] A bang sound can be heard on BWC footage.[106] There is the first clear view of Nurse Ivkovic, and she is putting her hands over her eyes.[107]
  1. [114]
    The footage shows that Nurse Ivkovic was fully engaged in a discussion with a patient and not looking at the incident at least until 00:26:08.967 – which is the point at which the patient she was engaged with turns in the direction of the incident. Nurse Ivkovic can clearly be seen looking at the incident at 00:26:09.607.
  1. [115]
    This would have enabled Nurse Ivkovic to see outstretched arms, limited in the way she directly describes. The statement that the fall was as a result of the outstretched arms is a conclusion and not based on a direct line of sight. Nurse Ivkovic witnessed milliseconds of the event pre-fall and covered her eyes for some of it.
  1. [116]
    This account is also at odds with the account provided by the AIN, whose evidence the decision-maker discounts on the basis of the AIN's role as an AIN.[108] The Respondent contends in submissions the decision-maker reasonably afforded minimal weight to the evidence supplied by the AIN on that basis.
  1. [117]
    I disagree and find this reasoning to be most perplexing, particularly in a frontline health setting where recognising and handling aggressive behaviour would be commonplace, and not exclusively the domain of security officers or trained clinicians.
  1. [118]
    The AIN, an agency worker, was directly assigned to the Patient and had been the subject of behaviours pre-incident and during the critical three minutes.
  1. [119]
    As outlined in the Security Incident Report and the earlier text message exchange between Officer Slennett and the Appellant, it was the conduct of the Patient towards the AIN seen by Officer Slennett on CCTV footage in the security office which caused him to come out of the office and engage with the Patient.[109]
  1. [120]
    The AIN was able, in spite of his job role, to provide an account of what he saw and heard. He did so immediately following the incident in discussion with Nurse Ivkovic, in a contemporaneous note and in the unsigned statement taken by phone in May 2023.
  1. [121]
    In his statement, the AIN provides details of behaviour that he was subjected to, and his analysis of the threat level posed by that conduct. He confirms based on his observation that the Patient posed a threat to the security officer and differentiates between the circumstances of that threat and his own earlier experience. He outlines that the fall was not because of a push, but rather the move of the Appellant's arm to protect himself; and that any contact by the security officer due to the proximity would look like a push.[110]
  1. [122]
    In his contemporaneous note he states, "The Patient tried to punch the security and when the security tried to deflect the punch, the Patient lost his balance and fell backwards hitting his back first."[111]
  1. [123]
    I see no reasonable justification for minimising the weight given to the evidence the AIN provided as a direct participant in the whole incident. I think this is particularly so in circumstances where no statement was obtained from the only other employee directly involved, who was not subject to the disciplinary proceeding.
  1. [124]
    I agree with the sentiment expressed in the Appellant's submissions in reply that:
  1. 10.… This reasoning is illogical at best. … None of the witnesses are experts. … They have given statements as witnesses to what they observed, not as experts.[112]

Reliance on footage review by Jackson

  1. [125]
    While the decision-maker conducted his own review of the footage, his decision letter and the submissions of the Respondent make clear he gave weight to and agreed with the conclusions drawn by Mr Jackson from his review of the footage, compared to the Security Incident Report, conducted in July. The first show cause notice explains Mr Jackson was asked to conduct this review based on his expertise in Occupational Violence Prevention (OVP).  Relevantly it is asserted (emphasis added):
  • The patient was 'moving in the required direction' which Mr Brown viewed as compliant behaviour on the part of the patient;
  • Mr Malcom (sic.) attempted to 'grab' the patient which caused the patient 'to pull away defensively';
  • Mr Malcom (sic.) did not use appropriate force which could be deemed as excessive considering the patient's 'perceived frailty, age and lack of overt aggression'; and
  • The initial arm grab followed by Mr Malcom (sic.) pushing the patient was not appropriate and could be deemed as excessive in the circumstances.[113]
  1. [126]
    The statement that the Patient was moving in the required direction and was therefore compliant has at all times been disputed by the Appellant.
  1. [127]
    Having reviewed the footage, it is clear the Patient was only moving in the required direction up to the point where he turned and stopped. This preceded any contact (at all) by the Appellant with the Patient.[114]
  1. [128]
    It is uncontroversial that the action that led to the Patient turning and stopping was Officer Slennett saying, "What are you mate?", even though the agitation expressed by the Patient as a result was directed at the Appellant.
  1. [129]
    There was an acceptance of the statement that the Patient was moving in the required direction as a foundational proposition for finding any contact was unwarranted and excessive. This was not reasonably open to the decision-maker, given the availability of the footage that he had independently reviewed.
  1. [130]
    The reference to the initial arm grab in Mr Jackson's review originated from the impugned SIR report, and cannot be seen in the footage. The Appellant can be seen moving towards the patient, who had stopped.[115] In the response to the first show cause notice and in submissions (presumably as a result of having the benefit of reviewing the footage), the Appellant describes this first movement as:
  1. 8.I placed my left hand to the side of the patient and gently guide (sic.) him in the direction I was pointing by applying pressure to the patient's right arm. This was a proportionate and appropriate use of force.[116]
  1. [131]
    However, there is no doubt that it is this contact which precipitates the Patient saying "Hey, hey!" and lifting his arm in a way that caused the Appellant to consider he was at risk of being struck. With the benefit of hindsight one might say that if that contact had not occurred, what followed might not have happened. However, that does not make the contact at that point in time unnecessary, unwarranted, or excessive given the patient had in fact stopped, was agitated, and not compliant.
  1. [132]
    The Patient's reaction and the proximity of the arm lift was viewed by the Appellant as a direct threat. Officer Slennett's reaction heard and seen on the footage seems to confirm this view.[117] This is further corroborated by Officer Slennett's verbal comment heard post fall that "He just went to strike,"[118] and his confirmation in the text exchange – "So that would be twice he displayed unpredictable threatening behaviour towards staff … and the fact he raised his fists and lunged towards you."[119]
  1. [133]
    As the decision-maker argues in his decision letter, security officers are trained in recognising and handling aggressive behaviour in a Health Service.[120] The two security officers directly involved in the incident formed a view that the Patient represented a threat. This was confirmed by the third person directly involved – the AIN.
  1. [134]
    On that basis, I do not agree that it was reasonably open to the decision-maker to determine that the threat did not exist in that moment.  The footage shows as particularised by the Appellant and confirmed by my review that the Patient moved their arms in a manner which could reasonably be interpreted as an imminent strike, curling their hand into a fist.[121]
  1. [135]
    Whether the action taken in response to the perceived threat was appropriate is a separate question, but it should not be scaffolded on an observably shaky foundation.
  1. [136]
    The Appellant has always denied he pushed (shoved/hit) the Patient and that his contact with the Patient and resulting fall was not a deliberate and excessive use of force. Rather, the Appellant submits it was the result of "a messy grapple"[122] arising from the perceived threat. The Appellant submits relying on the evidence of Mr Jackson, who does not find conclusively that a push occurred, is an insufficient basis for the decision-maker to reject the Appellant's version of events.
  1. [137]
    Mr Jackson's observations in his review of the Footage are not described with certainty (emphasis added):
  1. 19)
    Axon Body 2 - PSO Malcolm appears to push [the Patient] resulting in [the Patient] being forcibly shoved backwards and striking the floor with force
  2. 20)
    Camera D Block – [The Patient] observed forcibly falling into observed area and hitting floor - appears to be forceful push backwards[123]
  1. [138]
    Mr Jackson also asserts the age and perceived frailty of the Patient made the arm grab and resultant push inappropriate and possibly excessive.[124] The decision-maker agreed.[125]
  1. [139]
    The Appellant argued the Patient was not frail, but that his intoxication and unsteadiness contributed to the way that he fell.[126] The decision-maker views this as internal inconsistency in the Appellant's arguments, which in the decision-maker's view supports a contention that the Appellant's recollection is either unreliable or convenient.[127]
  1. [140]
    The footage demonstrates varying levels of 'unsteadiness' exhibited by the Patient. While he is capable of walking on his own, including in the critical moments pre-fall, he can also be seen swaying slightly and having a very small stumble[128] consistent with being intoxicated. When taking up the boxing pose against the AIN, the Patient does not seem old and physically frail; nor does he appear so when he slams down the bed railing or tosses away a blanket in pre-incident footage.
  1. [141]
    There is a difference between being unsteady or intoxicated and being old and frail. Giving the words their ordinary meanings in this context, to be intoxicated is to lose control of one's behaviour, physical or mental faculties from alcohol or substance use. Unsteadiness involves an instability of posture or movement from side to side as if one might fall. To be old is to grow old and deteriorate with age, and frailty is a weakness or vulnerability.
  1. [142]
    Saying the patient was not old and frail but was intoxicated or unsteady is not in my opinion evidence of dishonesty. While the ordinary meaning of these words differ, each in this context relates to the Patient's behaviour and stability on their feet.
  1. [143]
    No evidence was before the decision-maker other than the views expressed by Mr Jackson, which supported the view that the Patient appeared to be "an older, physically frail male", yet the decision-maker accepts this statement as "perceived frailty" to reinforce the view that any contact was unnecessary and therefore excessive.

The other witness statements

  1. [144]
    Witness statements were also available from Nurse Hardy and Nurse Sweeney as clinical staff "who were present during the incident."[129] While not directly witness to the incident their testimony has been relied on by the decision-maker (although not solely) in forming his view as to whether the patient was pushed.[130]
  1. [145]
    Nurse Sweeney's account given contemporaneously that "Yeah, I just saw him, come flying like…past" is further repeated in her witness statement:
  1. 12.[The Patient] was the person who was shouting and he appeared to be intoxicated as he was stumbling.

…

  1. 14.Seconds later, I saw [the Patient] flying backwards from the corridor into the corridor intersection and could only assume that he had been hit by someone.
  2. 15.Whilst I did not witness, he had been pushed hard enough that his feet left the ground and he fell backwards loudly onto his back and head.
  3. 16.Maybe at least one to two meters, he landed so hard on his head
  4. 17.It was not a stumble, he was not deflected by someone sweeping their arms, he actually flew backwards off his feet.
  5. 18.I could not see who had hit him, as the person was hidden by the corridor wall.[131]
  1. [146]
    Nurse Sweeney's account is fanciful and cannot be relied on. It bears no relationship to the actual movement of the Patient during the fall,[132] and contains bald conjecture as to why the Appellant's account of events could not be true; despite her not having a direct conversation with the Appellant or having seen any of the relevant events. This includes the actual contact with the Patient.
  1. [147]
    Nurse Hardy, Acting Clinical Nurse Consultant, is clear in her statement that she did not witness the relevant events and only became involved as part of the assessment of the Patient with Nurse Ivkovic following the fall.  She did hear what she assumed was the contact of the Patient with the floor.
  1. [148]
    From her direct knowledge, Nurse Hardy states she heard the Patient accusing staff of assaulting him, that the AIN told her that the Patient had attempted to punch him, that the Appellant told her the Patient had attempted to swing at him and he had used a two handed motion to deflect him, and that Nurse Ivkovic told her that while she did not witness the fall, she had concerns that maybe the Patient had been pushed.
  1. [149]
    Nurse Hardy also attests that she has never witnessed the Appellant using excessive force in any of her interactions with him over 11 years, so did not question what the Appellant told her.[133]
  1. [150]
    It is clear that Nurse Hardy's statement cannot be reasonably relied upon to determine whether the allegation has been substantiated, as she did not witness any of the relevant events.
  1. [151]
    The closest corroboration that there was a push from someone directly involved is contained in the contemporaneous text exchange between Officer Slennett and the Appellant. Officer Slennett says "and as you know it is completely justified to defend yourself by pushing someone back."[134] This characterisation as a push is immediately rejected by the Appellant, and is described as reassurance by the decision-maker and Respondent. The Respondent submits:
  1. 17.… It should be noted, for completeness, that the Respondent does not accept the unqualified proposition that it is acceptable or justifiable for security officers to defend themselves by pushing.[135]
  1. [152]
    This suggests there are circumstances where it would be deemed acceptable or at least justifiable. The Maybo training material attached to the Appellant's final submissions relevantly provides reasonable force can be used to defend oneself or others provided it is necessary, reasonable and proportionate.[136]
  1. [153]
    The Respondent summarises the finding in allegation one as follows:
  1. 14.Although Mr Malcom (sic.) describes the incident as a 'messy grapple' and maintains his position that he did not push or shove the patient, rather he was trying to hold the patient, the Respondent contends that it was reasonably open on the material before Mr Brown to conclude that the force was excessive and/or unnecessary towards the patient and that Mr Malcom's (sic.) version of events is not supported by the available evidence.[137]
  1. [154]
    The Respondent includes a timeline of events in support of the above contention (as outlined in the original show cause notice). While the events in the timeline are not incorrect, key events observable in the footage are omitted despite having been described by the Appellant in his response to the show cause notice, and captured in still shots from the footage in their submissions in the appeal.[138] This response was before the decision-maker, and these events are confirmed by my independent review of the footage. I accept the submissions of the Appellant that the footage does demonstrate an effort to deflect a perceived threat of a strike and hold, rather than push, the Patient.[139]
  1. [155]
    Upon reviewing the key pieces of evidence available to and/or relied on by the decision-maker –
  1. i.The limited witness account of Nurse Ivkovic considered crucial;
  2. ii.Incorrect and indirect inferences made by Mr Jackson;
  3. iii.The dismissal of the AIN's evidence on the basis of his role;
  4. iv.Failure to seek a full statement from Officer Slennett; and
  5. v.Evidence from clinical staff members who did not see the events at all;

I agree with the Appellant that the conclusions made about the underlying conduct were not sufficiently justified.  In these circumstances, a finding that the allegation was substantiated and constitutes misconduct was not reasonably open to the decision maker.

  1. [156]
    The principles in Briginshaw v Briginshaw[140] are relevant here and are discussed later in the process considerations of this decision.

Allegation Two

  1. [157]
    I will now consider the second allegation:

Allegation 2

On or around 17 March 2023, you falsified the Security Incident Report (SIS119282) relating to the incident with [the Patient].

  1. [158]
    This allegation relates to the Security Incident Report (SIR) completed by the Appellant at 2:10 am on 17 March 2023. Full content of that report is reproduced below:

At approx 0020 PSS Malcolm was returning to the office from another incident. PSS Malcolm noticed CTC Kiley (sic.) talking to [the Patient] who appeared to be getting verbally agitated towards CTC Kiley (sic.). PSS Malcolm stood by but could hear more commotion going on in the hallway near the security office. A nurse indicated to PSS Malcolm that it was [the Patient] and PSS Malcolm made his way towards the hallway. PSO Slennett was trying to get [the Patient] back to the bed he had in the QAS ramp but [the Patient] was argumentative and refusing directions. PSS Malcolm also made requests for [the Patient] to move back to the bed which he eventually headed in that direction. [the Patient] continued to make derogatory remarks towards PSO's and PSO Slennett tried to defuse the situation by saying "come on mate just go back to the bed". For some reason [the Patient] took office (sic.) to the word "mate" and turned towards PSS Malcolm pointing his finger and getting very aggressive. PSS Malcolm went to grab [the Patient's] arm and direct him to the nearby bed, [the Patient] pulled his arm away and raised his fist and started a striking motion towards PSS Malcolm. PSS Malcolm deflected [the Patient's] arms with his open hands in a rounded motion in front of [the Patient] and [the Patient] fell backwards and landed heavily on the ground, PSS Malcolm and PSO's immediately stopped, stood back and made no further interaction to [the Patient].  Nursing staff and Dr attended to [the Patient] on the floor then moved him to a bed and into Resus 1, [the Patient] was soon moved back into the corridor waiting for a place to put him.

PSS Malcolm and PSO Slennett were approached by CTC Kiley (sic.) as to what happened, she asked that our BWC be turned off which we did without thinking. PSS Malcolm explained about [the Patient] attempt to strike and the deflection to stop the strike. PSO Slennett confirmed this and the AIN Syed from Northern Nursing also confirmed this to CTC Kiley (sic). There were three patients on the ramp waiting for attention who also confirmed what happened.

PSS Malcolm made enquiries as to the condition of [the Patient] from the nurse who was watching him while he was in the corridor and she said he was ok and they would get a scan to confirm. PSS Malcolm has since been told by PSO Slennett he saw [the Patient] raise his fists towards AIN Syed on CTV (sic.) and that's why he got involved at the start, PSS Malcolm has confirmed this with AIN Syed.[141]

  1. [159]
    The findings in the decision letter state:
  • I acknowledge that your recollection reflects your perspective on the incident, considering you are unable to rely on witness statements and video footage. However, it is crucial to underscore the importance, aligned with your role, Code of Conduct and Occupational Violence Prevention Training, of providing accurate and timely reports. I hold the belief that your portrayal of the incident may not accurately capture its true nature, prompting concerns about a potential motive to downplay the severity of your actions to avoid disciplinary consequences.
  • It is the expectation that your conduct is appropriate and reflects the principles, values and standards of conduct outlined in the Code of Conduct. I am concerned your deliberate decision to falsify the Security Incident Report is a blatent (sic) disregard for our values as a Health Service and your commitment to your role and ethical duties as a public servant.
  • Having thoroughly examined the available footage, I support the conclusion that you deliberately falsified the Security Incident Report.[142]
  1. [160]
    The Appellant submits that the decision-maker selectively refers to two paragraphs from the SIR "absent the detail and context of the remainder of the SIR":[143]
  1. 31.The SIR is complete from my perspective. I am not expected to gather versions from witnesses and to view CCTV and BWC to create an overall perspective. The SIR is a true and accurate account of the incident at that point in time from my perspective.
  2. 32.Whether the patient had a closed fist, partially closed hand, or bent fingers is to argue over semantics. … What is important is how I recalled the incident at a stressful point in time and an exact recall should not be expected under stress.
  3. 33.Whether the patient was starting a striking motion is entirely open for me to conclude with what I knew and observed.
  4. 34.The disciplinary finding is unfair and unreasonable because the decision-maker has relied on the erroneous finding in allegation one. There is no misrepresentation or falsification of the SIR. The report is accurate from my perspective. I completed the SIR in accordance with policy and training.[144]

Consideration

  1. [161]
    It does not automatically follow that because there is a factual disagreement about the incident that the Appellant deliberately falsified the contemporaneous Incident Report to avoid possible future disciplinary consequences. The report was filed less than 2 hours after the debrief with Nurse Ivkovic and an hour before the Riskman report was lodged.
  1. [162]
    The significant discrepancy raised by the Respondent relates to level of aggression displayed by the Patient when reacting to the term ‘mate’. It is correct that the Patient cannot be seen pointing at the Appellant at this time. Some pointing occurs earlier.[145] The description that the Patient was getting very aggressive is also disputed, although the decision-maker does concede that the patient is agitated.[146]
  1. [163]
    While with the benefit of footage review one might determine there is a lack of nuance in the description of "very aggressive", within seconds of the Patient stopping and turning he does lift his arm and his hand curls into a fist in what the Appellant reasonably views as a direct threat (confirmed by Officer Slennett and the AIN).This behaviour taken together could reasonably be described as very aggressive and certainly moves beyond the realm of mere verbalising.
  1. [164]
    Power IC considers similar circumstances relating to a security incident report in Van Berkel v State of Queensland:
  1. [62]
    … The Appellant had a right to put forward his account of events to the best of his recollection … A finding that unreasonable force was used does not render the statements made by the Appellant and other witnesses dishonest. Whilst the Appellant was required to give a truthful account, the failure to mention aspects raised by the Respondent does not demonstrate dishonesty to the standard required. …

…

  1. [92]
    … It is not unusual for there to be differences between witnesses in their recollections of particular events, and the differences generally do not give rise to accusations of dishonesty. The same witness rarely gives the exact same account when interviewed on separate occasions months apart. …[147]
  1. [165]
    The principle in Watson v Foxman, as expressed by McClelland CJ, is relevant:

"[H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."[148]

  1. [166]
    As previously noted, reliability of the Appellant's recollection and/or credibility is further questioned by the decision-maker as a result in the difference in opinion regarding the frailty or unsteadiness of the Patient. This reinforces for the decision-maker that the account is deliberately dishonest. I do not agree that it is reasonable for a finding of deliberate embellishment and falsification of the report to be made – particularly when based on "careful consideration of the material."[149]
  1. [167]
    Even if I had found that allegation one had been substantiated on the balance of probabilities, I would not be satisfied that allegation two would also be substantiated.

The Process

  1. [168]
    In considering whether procedural fairness has been afforded in this matter it is necessary to consider the steps required by the Discipline Directive as well as the process adopted by the decision-maker in reaching their findings.
  1. [169]
    In relation to the former, there is no information before the Commission to suggest the decision-maker did not undertake the appropriate steps in deciding to commence the disciplinary process. A decision was made to suspend the Appellant with pay due to the nature of the alleged conduct, and the Crime and Corruption Commission (CCC) was informed. A person was tasked to gather witness statements from selected staff. Mr Jackson was asked to review the footage and the SIR, and provide his opinion in relation to the appropriateness of the Appellant's response during the incident. These steps led to the development of the show cause notice, where the allegations were particularised and two possible grounds for disciplinary findings were outlined if the conduct was proven for each allegation. The Appellant was afforded the requisite minimum 14 days to provide their response, and that response was provided. Having considered the response, the decision-maker issued their findings on grounds with one ground per allegation and information about lodging an appeal. The letter also contained notice of proposed disciplinary action of termination with the required minimum seven days for response.
  1. [170]
    With the possible exception of the Appellant not being provided the additional material he sought to enable a proper response to the first show cause notice,[150] the broad procedural steps and timings required have prima facie been complied with.
  1. [171]
    The Appellant does however raise two significant concerns about the process used by the decision-maker to come to their findings:
  1. 1.Failure to seek a statement from Officer Slennett despite that issue being raised by the Appellant in the show cause process leading to an invitation to the Commission to draw a Jones v Dunkel inference; and
  2. 2.Failure to properly apply the Briginshaw principles in determining the allegations are substantiated on the balance of probabilities.

Issue One – failure to seek a statement from Officer Slennett

  1. [172]
    The Appellant made submissions that a Jones v Dunkel[151] inference should be made in light of the Respondent failing to obtain a witness statement from Officer Slennett (citations omitted):
  1. 12.The rule in Jones v Dunkel states that where a party fails to call a witness who has direct evidence the decision-maker may draw an inference that the evidence of the witness would be unhelpful to the party who failed to obtain the statement. For the rule to apply, three (3) elements need to be met:
  1. a.That the evidence would have been expected to be called by the party;
  2. b.The evidence is relevant to determining the facts in issue; and
  3. c.No explanation has been given for the absence of the evidence.
  1. 13.I submit the evidence of PSO Slennett was relevant and the decision-maker would have been reasonably expected to obtain his statement. To date the reason for not obtaining the statement is unexplained. I submit the Industrial Commissioner should draw an adverse inference that QH did not obtain a statement from PSO Slennett because he would have likely supported my version of events and that would have been consistent with the observations of Mr Hassan.[152]
  1. [173]
    The rule in Jones v Dunkel has been succinctly described by the Full Bench of the Fair Work Commission as follows (citations omitted):
  1. [276]
    The rule in Jones v Dunkel has been aptly described as 'a rule of common sense and fairness in relation to the fact finding process.' It applies in circumstances where a party fails to call a witness, where it would be natural for them to do so, or where the party might be reasonably expected to call the witness. A breach of the 'rule' may lead to the drawing of an adverse inference; namely that the uncalled evidence would not have helped the party's case; not an inference that the uncalled evidence would have been positively unfavourable to the party's case or positively favourable to the opposing party's case. Whether such an inference is drawn is a matter of discretion.[153]
  1. [174]
    It is odd that no statement was taken from Officer Slennett as part of the investigation process and subsequent disciplinary process. The fact that no explanation has been provided for this by the Respondent despite it being raised by the Appellant throughout the disciplinary process, and as a ground for this appeal, is also perplexing.
  1. [175]
    Officer Slennett was directly involved in the incident, and there is no evidence before me that a statement could not have been sought by the decision-maker at any stage leading up to the disciplinary finding decision.
  1. [176]
    I note the approach taken by IC Power in Van Berkel v State of Queensland where faced with the same invitation to draw a Jones v Dunkel inference in a public sector appeal:
  1. [51]
    … Appeals filed pursuant to s 130 of the PS Act are routinely determined on the papers, and in circumstances where a hearing was not sought, no adverse inference will be drawn for the Respondent's decision not to call witnesses as the matter has been determined without a hearing.[154]
  1. [177]
    I will not draw the adverse inference sought in these circumstances for the reasons above, but find it demonstrates a serious flaw in the disciplinary process itself. The process required the decision-maker would consider all relevant material – not just the material made available[155] to them.
  1. [178]
    The Discipline Directive as outlined earlier in this decision makes clear the decision-maker must review all relevant material and provide all evidence relevant to the facts considered. This is further supported in HR Policy E10, which requires findings be supported by objective evidence which has taken into account all relevant materials. There is nothing in these instruments to suggest the obligation is passive or optional.
  1. [179]
    In Vega Vega v Hoyle, A Lyons J detailed procedural fairness considerations in the context of workplace investigations (citations omitted, emphasis added):
  1. [173]
    The rules of natural justice are not fixed and they depend on the particular statutory framework and the circumstances of each case, particularly the nature of the inquiry, the subject matter and the rules under which the decision-maker is acting. It is clear that there needs to be a flexible adaptation in the circumstances of every case so that fair procedures are adopted. As Brennan J stated in Kioa v West:

"What the principles of natural justice require in particular circumstances depends on the circumstances known to the repository at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would have known. The repository of power has to adopt a reasonable and fair procedure before he exercises the power and his observance of the principles of natural justice must not be measured against facts which he did not know and which he would not have known at the relevant time though he acted reasonable (sic.) and fairly."[156]

  1. [180]
    The fact that the decision-maker failed to seek out relevant information that was known has rendered the disciplinary process unfair and unreasonable. This impacts the reasonableness of the disciplinary decision itself.
  1. [181]
    The High Court in Ismail v Minister for Immigration unanimously held (citations omitted):

Failure to inquire?

  1. [25]
    The making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty or power. While decisions have expressed the criteria of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law.[157]
  1. [182]
    The unreasonableness of the decision-maker's failure to inquire is obvious given that during the disciplinary process, the Appellant was barred from contacting Officer Slennett himself. As stated in the first show cause notice (emphasis added):

Lawful directions

Confidentiality

…

You are directed to keep the details of this matter confidential and not discuss this matter with your work colleagues or any person likely to have information relevant to the allegation/s against you, apart from your support person, union, legal representative or employee assistance.

In the event you consider it necessary to contact a particular colleague in relation this matter (sic.) you are directed to contact Ms Reiher in the first instance, who will refer your request to me for consideration.

  1. [183]
    The Appellant was therefore in a situation where both himself and the decision-maker were aware of relevant evidence not yet obtained, but the decision-maker failed to act in circumstances where the Appellant was restricted from acting himself. While there is a rational basis for why persons subject to disciplinary processes are barred from contacting witnesses, it does not follow that the decision-maker is under no obligation to make reasonable inquiries where they are central to the decision.

Issue Two – failure to properly apply the Briginshaw principle

  1. [184]
    The standard of proof for disciplinary decisions is on the balance of probabilities. It is well settled and reflected in the Discipline Directive that while the standard of proof does not alter from case to case, the strength of evidence required to meet the standard does vary.
  1. [185]
    In Perry v State of Queensland, McLennan IC summarised the Briginshaw principle as follows (citations omitted):
  1. [46]
    In civil matters, the standard of proof is the balance of probabilities. The relevance of Briginshaw is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed. As explained by Dixon J in Briginshaw:

… 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…

(The) nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[158]

  1. [186]
    O'Connor VP provided further insight into the application of the Briginshaw principle in workplace investigations in the context of unfair dismissal in the decision of White v Queensland (citations omitted):
  1. [46]
    I also accept that the information gathering process was uncontrolled and ad hoc and the "investigation", such as it was, lacked rigour and the degree of objective analysis necessary when considering whether an employee's employment should be terminated.

…

  1. [56]
    An employer who undertakes a full extensive investigation; gives the employee a reasonable opportunity to respond to allegations; and makes an honest decision that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, be held immune from interference by the Commission. However, this is not such a case.
  2. [57]
    Having regard to the seriousness of the allegations and the significant consequences for the applicant's employment, the more anxious the decision-maker should have been to ensure she attained the necessary standard of satisfaction that the facts in dispute were more probable than not to exist. The evidence before the primary decision-maker was of such a kind that the standard of "reasonable satisfaction" could not be reached.[159]
  1. [187]
    The incident underpinning this appeal is serious and the Patient may have sustained serious injury from what was a significant fall. The fact the Patient did not suffer any injury does not alter the seriousness of the alleged conduct.
  1. [188]
    The Respondent suspended the Appellant on pay due to the nature of the allegations, and notified the matter to the CCC as a disciplinary breach providing reasonable grounds for termination.[160]
  1. [189]
    The seriousness of the alleged conduct and the seriousness of the likely outcomes flowing from the decision places an onus on the decision-maker to undertake a rigorous evidence-based process in making decisions on the balance of probabilities. Relying on "material made available" to the decision-maker – without due consideration of material which the decision-maker is aware may be missing but is critical to the decision and readily attainable – does not and should not satisfy those requirements for the reasons outlined above. 
  1. [190]
    In my consideration of the evidence relied upon for the substantiation of allegation one, I find serious flaws in the decision-maker's reasoning when giving weight to or disregarding evidence of particular individuals or category of individuals. The decision-maker argues that testimony of clinical staff is to be preferred as they have experience in recognising aggressive behaviour and understanding appropriate response. The decision-maker further concludes that the level of the clinical staff member is also relevant –  an AIN's testimony is less persuasive than the registered nurse, even if the registered nurse was not a direct witness to the event.
  1. [191]
    The decision-maker further states that the testimony of staff such as security officers would fall into the category of experienced people capable of providing relevant testimony – yet did not seek the testimony of any other security officer directly involved in or witness to the incident. The version of the security supervisor was almost completely dismissed.
  1. [192]
    It is unclear how this hierarchy has any reasonable basis or intelligent justification. This would be troubling in any disciplinary investigation, but is more so in an investigation where the outcome of any findings could lead to termination of employment.
  1. [193]
    It is reasonable that the decision-maker would ask a person such as Mr Jackson, who provides training in dealing with aggressive behaviour to staff, including security staff to review the footage and provide a view. However, the decision-maker maintains the responsibility to test the summarised assertions against the submissions made by the Appellant in response to the show cause, the direct eyewitness evidence, and their own independent review of the footage. Without doing so, it cannot be said that the decision-maker has truly reviewed all relevant material.
  1. [194]
    In all of these circumstances I find the process was not procedurally fair.

Conclusion

  1. [195]
    In relation to allegation one, in Van Berkel v State of Queensland, Power IC observed in relation to uses of force involving security personnel (emphasis added):
  1. [103]
    I note that the witness statements describe a very difficult working environment in which all staff had to contend with a challenging patient during the relevant incident. Whilst it is acknowledged that training is provided to employees to deal with such incidents, I also note that in circumstances in which employees face threats of violence, provocation and abuse, the reactions to these threats do not have to be perfect to be considered reasonable or appropriate…[161]
  1. [196]
    In the particulars of that case, the Commissioner found the conduct was neither reasonable or appropriate, but establishes that an imperfect response is not in and of itself determinative.
  1. [197]
    The actions of the Appellant were not perfect. He should not have called the Patient "dickhead." He should have tried to create more room between himself and the Patient if possible. He could have ignored rather than responded to the Patient's agitation in relation to the term "mate." He might have chosen a different hold. He might not have touched the Patient at all. As a security supervisor of long-standing service, he might even be held to a higher standard in this regard.
  1. [198]
    The Appellant's experience and unblemished record might also have been weighed more in his favour, given that from the outset, the Appellant stated that he responded to what he believed was an imminent threat. The Appellant exercised his best judgement whilst making split second decisions.
  1. [199]
    However, the findings in this matter are not about his imperfect response – the allegations are that the Appellant deliberately and unnecessarily pushed the Patient with excessive force in the absence of any overt aggression, and then lied about it. If the evidence relied upon and the process undertaken by the decision-maker had meant this conclusion was fair and reasonable, then this conduct would rise to the level of misconduct as it would be "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."[162] But that case was not reasonably made out.
  1. [200]
    I do not agree that it was reasonably open to the decision-maker to reach the conclusions they have reached about the underlying conduct in the allegations. Further I find the process was not procedurally fair.  In these circumstances I do not agree that the disciplinary ground of misconduct has been made out for either allegation. The decision appealed against was not fair or reasonable.
  1. [201]
    I order accordingly:

Orders:

  1. 1.The decision appealed against is set aside.
  2. 2.The decision appealed against is substituted with the following decision
  • Allegations 1 and 2 are not substantiated.

Footnotes

[1] Organisational Assignment History filed 6 March 2024; Correspondence received from the Appellant, dated 6 March 2024.

[2] First Show Cause Notice dated 9 August 2023, filed 5 March 2024 ('First show cause notice').

[3] Ibid.

[4] Ibid.

[5] Public Sector Act 2022 (Qld).

[6] Code of Conduct for the Queensland Public Service (1 January 2011).

[7] First show cause notice (n 2).

[8] Appellant's response to First Show Cause Notice dated 22 August 2023, filed 5 March 2024 ('Show cause response').

[9] Decision Letter dated 16 January 2024, contained in Notice of Appeal filed 24 January 2024 ('Decision letter').

[10] Ibid, p 6.

[11] Queensland Health Human Resources Policy E10 (QH-POL-124) – Discipline (June 2021) ('HR Policy E10').

[12] Notice of Appeal filed 24 January 2024 ('Appeal notice').

[13] Respondent's submissions filed 19 February 2024, ('Respondent's submissions') [10].

[14] Goodall v State of Queensland & Anor [2018] QSC 319, 5 as to the former, equivalent provisions in the Public Service Act 2008 (Qld).

[15] O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283, [10].

[16] Coleman v State of Queensland (Department of Education) [2020] QIRC 32 ('Coleman'), [62].

[17] Public Sector Commission Directive 05/23 – Discipline (1 March 2023) ('Discipline Directive')

[18] Ibid cl 9.

[19] HR Policy E10 (n 11).

[20] Ibid, cl 2.

[21] This additional material considered to be relevant was subject of discussion at a mention held on 20 March 2024.

[22] First show cause notice (n 2), p 2.

[23] CCTV footage filed 26 February 2024, 'Pre-Code Black 1'.

[24] CCTV Footage filed 26 February 2024: 'Pre-Code Black 1,' 'Pre-Code Black 2,' 'Pre-Code Black 3,' 'Pre-Code Black 4.'

[25] CCTV Footage filed 26 February 2024: 'Pre-Code Black 2', 22:47.

[26] CCTV footage filed 26 February 2024, 'Patient v PSOs 1'. ('CCTV Patient v PSOs 1').

[27] Ibid; Appellant's submissions filed 13 February 2024 (Appellant's submissions'), attachment 'BM-12': Statement of Syed Hassan ('Statement of Syed Hassan'); Security Incident Report annexed to first show cause notice (n 2).

[28] CCTV Patient v PSOs 1 (n 26).

[29] Ibid.

[30] Show cause response (n 8), p 1; Decision letter (n 9), p 1.

[31] CCTV Patient v PSOs 1 (n 26).

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] CCTV footage filed 26 February 2024, 'Patient v PSOs 2' ('CCTV Patient v PSOs 2'). Note this means the Appellant did not directly witness the Patient's boxing pose or raised middle finger captured in CCTV Patient v PSOs 1 (n 26).

[37] Ibid.

[38] CCTV footage filed 26 February 2024, 'Patient v PSOs 3' ('CCTV Patient v PSOs 3').

[39] Show cause response (n 8), p 3; Decision letter (n 9), p 4.

[40] CCTV Patient v PSOs 1 (n 26).

[41] CCTV Patient v PSOs 2 (n 36).

[42] Ibid.

[43] CCTV Patient v PSOs 1 (n 26).

[44] Ibid.

[45] Ibid.

[46] BWC footage filed 26 February 2024, 'Axon BWC 2' ('BWC footage').

[47] Ibid.

[48] First show cause notice (n 2), p 2; Show cause response (n 8), p 2.

[49] BWC footage (n 46).

[50] Ibid.

[51] Ibid.

[52] CCTV Patient v PSOs 3 (n 38).

[53] BWC footage (n 46).

[54] Ibid.

[55] Ibid.

[56] CCTV Patient v PSOs 2 (n 36).

[57] CCTV Patient v PSOs 3 (n 38).

[58] Ibid.

[59] CCTV Patient v PSOs 2 (n 36).

[60] Ibid.

[61] BWC footage (n 46).

[62] Ibid.

[63] CCTV Patient v PSOs 2 (n 36); CCTV Patient v PSOs 3 (n 38). Note the Patient's position pre-fall is discernible from the Patient's white watch and hospital band being visible at 00:26:03 in CCTV Patient v PSOs 2.

[64] BWC footage (n 46).

[65] CCTV Patient v PSOs 2 (n 36).

[66] BWC footage (n 46).

[67] CCTV Patient v PSOs 3 (n 38).

[68] Ibid.

[69] BWC footage (n 46).

[70] Ibid.

[71] Ibid at 00:26:33.

[72] Ibid at 00:26:44.

[73] Ibid.

[74] Ibid.

[75] Ibid.

[76] Decision letter (n 9), pp 3-4; quoting statement of Matthew Jackson, filed 6 March 2024.

[77] Ibid p 4.

[78] Decision letter (n 9).

[79] Respondent's submissions (n 13), [12]–[13].

[80] Other than the Appellant as the subject of the show cause process.

[81] Appellant's submissions (n 27).

[82] Appellant's submissions in reply filed 26 February 2024 ('Appellant's submissions in reply').

[83] [1959] HCA 8, 101 CLR 298.

[84] Appellant's submissions (n 27), attachment 'BM-21' text messages between Officer Slennett and the Appellant ('Officer Slennett's text messages').

[85] Refer to para [74] of this decision.

[86] Appellant's submissions (n 27), [22].

[87] Respondent's submissions (n 13), [17].

[88] Refer to paragraphs [62]–[70] of this decision.

[89] Decision Letter (n 9), p 1.

[90] HR Policy E10 (n 11).

[91] Discipline Directive (n 17).

[92] The respondent also fails to address this directly in submissions.

[93] Appellant's submissions (n 27), attachment 'BM-15': Statement of Kylie Ivkovic ('Statement of Kylie Ivkovic'), [13].

[94] CCTV Patient v PSOs 2 (n 36).

[95] Riskman Report annexed to first show cause notice (n 2).

[96] Ibid.

[97] Ibid.

[98] Ibid.

[99] Statement of Kylie Ivkovic (n 93).

[100] Decision letter (n 9), p 4.

[101] Appellant's submissions (n 27), CCTV still attachments 'BM-5', 'BM-6', 'BM-7', 'BM-8'.

[102] CCTV Patient v PSOs 3 (n 38).

[103] Ibid.

[104] CCTV Patient v PSOs 2 (n 36).

[105] Ibid.

[106] BWC footage (n 46).

[107] Ibid.

[108] Refer to para [82] of this decision.

[109] Captured in the first minute, referred to at paras [46]–[49] of this decision.

[110] Statement of Syed Hassan (n 27).

[111] Appellant's submissions (n 27), attachment 'BM-13'.

[112] Appellant's submissions (n 27), [10].

[113] Respondent's submissions (n 13).

[114] Refer to para [63] of this decision.

[115] Refer to para [67] of this decision.

[116] Appellant's submissions (n 27), [8].

[117] Refer to paras [67]–[69] of this decision.

[118] Refer to para [74] of this decision.

[119] Officer Slennett's text messages (n 84).

[120] Decision Letter (n 9), p 4.

[121] Appellant's submissions (n 27), attachments 'BM-4', 'BM-5', 'BM-6'. See also paras [67]–[68] of this decision.

[122] Appellant submissions (n 27), [12].

[123] Statement of Matthew Jackson, filed 6 March 2024.

[124] Ibid [6].

[125] Decision letter (n 9), pp 3-4.

[126] Show cause response (n 8), [22].

[127] Decision letter (n 9), p 4.

[128] Refer to para [59] of this decision.

[129] First show cause notice (n 2), p 3.

[130] Respondent's submissions (n 13), [12]–[13].

[131] Appellant's submissions (n 27), attachment 'BM-17': Statement of Caroline Sweeney, [12]–[18].

[132] Refer to para [70] of this decision.

[133] Appellant's submissions (n 27), attachment 'BM-14': Statement of Tracey Hardy, [43]. Note also in an email dated 27 February 2024, the Commission sought confirmation whether the Appellant had a history of any other similar incidents or other significant performance issues over the course of his employment with GCUH or the Department more broadly. The Department responded in an email dated 6 March 2023, wherein no incidents involving excessive use of force were noted.

[134] Officer Slennett's text messages (n 84).

[135] Respondent's submissions (n 13), [17].

[136] Appellant's submissions in reply (n 82), attachment 'BM-24' Maybo Module screenshots.

[137] Respondent's submissions (n 13), [14].

[138] Appellant's submissions (n 27), attachments 'BM-1' – 'BM-11', 'BM-18', 'BM-20'.

[139] Refer to paras [67]–[70] of this decision.

[140] [1938] HCA 3; (1938) 60 CLR 336.

[141] Appellant's submissions (n 27), attachment 'BM-22': Security Incident Report.

[142] Decision letter (n 9), p 6.

[143] Appellant's submissions (n 27), [30].

[144] Appellant's submissions (n 27), [31]–[34].

[145] Refer to para [62] of this decision.

[146] Decision letter (n 9), p 4.

[147] Van Berkel v State of Queensland (Queensland Health) [2023] QIRC 264 ('Van Berkel'), [62], [92].

[148] Watson v Foxman (1995) 49 NSWLR 315, pp 318-319.

[149] Decision letter (n 9).

[150] Appeal notice (n 12).

[151] Jones v Dunkel (1959) 101 CLR 298.

[152] Appellant's submissions in reply (n 82), [12]–[13].

[153] Family and domestic violence leave review 2021 [2022] FWCFB 2001. See also Kuhl v Zurich Financial Services [2011] HCA 11; 243 CLR 361, [63]–[64].

[154] Van Berkel (n 146), [51].

[155] Decision letter (n 9), p 3.

[156] Vega Vega v Hoyle [2015] QSC 111, [173].

[157] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, [25].

[158] Perry v State of Queensland (Queensland Health) [2023] QIRC 348, [46].

[159] White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041, [46], [56]–[57].

[160] As required by cl 1 of HR Policy E10 (n 11), and cl 3 of the Discipline Directive (n 17). See ss 15 and 48A of the Crime and Corruption Act 2001 (Qld).

[161] Van Berkel (n 146), [103].

[162] Coleman (n 16), [62].

Close

Editorial Notes

  • Published Case Name:

    Malcolm v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Malcolm v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 97

  • Court:

    QIRC

  • Judge(s):

    Caddie IC

  • Date:

    01 May 2024

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] HCA 3
2 citations
Jump To
Cite 1 - [1938] HCA 3
Cite 2 - [1938] HCA 3
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
2 citations
Jump To
Cite 1 - [2020] QIRC 32
Cite 2 - [2020] QIRC 32
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
2 citations
Jump To
Cite 1 - [2024] HCA 2
Cite 2 - [2024] HCA 2
Jones v Dunkel (1959) 101 CLR 298
2 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Jones v Dunkel [1959] HCA 8
1 citation
Jump To
Cite 1 - [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
2 citations
Jump To
Cite 1 - [2011] HCA 11
Cite 2 - [2011] HCA 11
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
1 citation
Jump To
Cite 1 - (2011) 243 CLR 361
O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283
2 citations
Jump To
Cite 1 - [2023] QIRC 283
Cite 2 - [2023] QIRC 283
Perry v State of Queensland (Queensland Health) [2023] QIRC 348
2 citations
Jump To
Cite 1 - [2023] QIRC 348
Cite 2 - [2023] QIRC 348
Van Berkel v State of Queensland (Queensland Health) [2023] QIRC 264
2 citations
Jump To
Cite 1 - [2023] QIRC 264
Cite 2 - [2023] QIRC 264
Vega Vega v Hoyle [2015] QSC 111
2 citations
Jump To
Cite 1 - [2015] QSC 111
Cite 2 - [2015] QSC 111
Watson v Foxman (1995) 49 NSWLR 315
2 citations
Jump To
Cite 1 - (1995) 49 NSWLR 315
Cite 2 - (1995) 49 NSWLR 315
White v Queensland [2017] QIRC 41
2 citations
Jump To
Cite 1 - [2017] QIRC 41
Cite 2 - [2017] QIRC 41

Cases Citing

Case NameFull CitationFrequency
Adam v State of Queensland (Queensland Health) [2024] QIRC 1772 citations
Benn v State of Queensland (Department of Education) [2025] QIRC 2362 citations
Brandis v State of Queensland (Gold Coast Hospital and Health Service) [2024] QIRC 1582 citations
Dickerson v State of Queensland (Queensland Health) [2025] QIRC 1632 citations
Geary v State of Queensland (Queensland Health) [2024] QIRC 2502 citations
May v State of Queensland (Queensland Health) [2024] QIRC 1762 citations
Simitsis v State of Queensland (Queensland Health) [2025] QIRC 571 citation
Thomas v State of Queensland (Queensland Police Service) [2025] QIRC 1531 citation
Williams v State of Queensland (Queensland Health) [2025] QIRC 2283 citations
1

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