Fisher v Queensland Ambulance Service - [2023] QIRC 39

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: PARTIES:	Fisher v Queensland Ambulance Service [2023] QIRC 039 Fisher, Michael Craig (Appellant) v Queensland Ambulance Service (Respondent)
CASE NO:	PSA/2022/988
PROCEEDING:	Public Service Appeal – Fair treatment decision
DELIVERED ON:	10 February 2023
MEMBER: HEARD AT: ORDERS: CATCHWORDS:	McLennan IC On the papers *Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with the following decision:* 1. That Allegation One is not substantiated. 2. That Allegation Two is substantiated. PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – disciplinary decision – where appellant alleged to have inappropriately used force against a patient – where appellant alleged to have inappropriately caused injury to a patient – where two allegations substantiated – where disciplinary action proposed –whether disciplinary finding was fair and reasonable
LEGISLATION & OTHER INSTRUMENTS: CASES:	Ambulance Service Act 1991 (Qld) s 18A, s 18B Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564, s 567 Public Service Act 2008 (Qld) s 194 Code of Conduct for the Queensland Public Service s 1.5 Briginshaw v Briginshaw (1938) 60 CLR 336 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Reasons for Decision

Mr Michael Fisher (the Appellant) is employed as an Advanced Care Paramedic with the Queensland Ambulance Service (QAS; the Respondent).
In correspondence dated 6 June 2022, the Respondent invited the Appellant to show cause as to why disciplinary findings should not be made against him in relation to the following allegations:
Allegation 1
It is alleged that at approximately 12:58:07 on 1 July 2021 at TUH, you inappropriately used force by taking hold of a female patient's wrist.
Allegation 2
It is alleged that at approximately 12:58:09 on 1 July 2021 at TUH, you inappropriately caused injury to a female patient by striking her in the face with your closed fist.
In correspondence dated 20 June 2022, the United Workers Union provided a response to the Respondent on behalf of the Appellant.
In correspondence dated 27 October 2022, Ms Karen Arbouin[1] advised the Appellant of her decision that both Allegation 1 and Allegation 2 are substantiated on the balance of probabilities (the Decision).
[1] Deputy Commissioner, Statewide Operations – North and Rural & Remote, Queensland Ambulance Service.

With respect to both Allegation 1 and Allegation 2, the decision-maker advised:

… I have determined that you have failed to comply with the Code of Conduct for the Queensland Public Service, in particular, section 1.5 Demonstrate a high standard of workplace behaviour and personal conduct.
Where public servants have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public:
We will:

a) treat co-workers, clients and members of the public with courtesy and respect…

With respect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QIRC 39
Decision Date: 10 February 2023

CaseChat Overview and Summary

The case of Fisher v Queensland Ambulance Service involved an appeal by the appellant, an employee of the Queensland Ambulance Service, against a disciplinary decision. The appellant was accused of using inappropriate force against a patient and causing injury. The disciplinary panel substantiated two allegations and proposed disciplinary action. The appellant argued that the decision was unfair and unreasonable and appealed under section 194(1)(eb) of the Public Service Act 2008 (Qld). The appeal was lodged within the required timeframe under section 564(3) of the Industrial Relations Act 2016 (Qld).

The legal issue in this case was whether the disciplinary decision was fair and reasonable. The court considered whether the findings were correctly reached and whether the evidence was reliable. The court noted that a public service appeal is not a rehearing but a review of the decision and the decision-making process. The court could consider other evidence if it was relevant. The court could confirm the decision, set it aside and substitute another decision, or set it aside and return the matter to the decision maker.

The court found that the decision to substantiate the allegations was fair and reasonable. The court noted that the findings were reasonably open to the decision maker and that the evidence was reliable. The court set aside the decision to substantiate the first allegation and substituted it with a decision that the first allegation was not substantiated. The court upheld the decision to substantiate the second allegation. The court found that the disciplinary action proposed was appropriate and reasonable. The court set aside the decision appealed against and substituted it with a decision that the first allegation was not substantiated and that the second allegation was substantiated.

Orders

Orders of the court

McLennan IC

On the papers

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

1. That Allegation One is not substantiated.

2. That Allegation Two is substantiated.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 194(1)(eb) of the Public Service Act 2008 (Qld) (the PS Act) provides than an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)". Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given. The Decision was given to the Appellant on 27 October 2022 and the Appeal Notice was filed in the Industrial Registry on 17 November 2022. I am satisfied the Decision is one that may be appealed against and was filed within the required timeframe. Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[2] This is the key issue for my determination. [2] Industrial Relations Act 2016 (Qld) s 562B(3). The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[3][3] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76]. A public service appeal is not by way of rehearing,[4] but involves a review of the decision arrived at and the decision–making process associated therewith. [4] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld). Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.[5][5] Industrial Relations Act 2016 (Qld) s 567(2). In deciding a public service appeal, s 562C of the IR Act provides that the Commission may:·confirm the decision appealed against; ·set the decision aside and substitute another decision; or·set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. In accordance with the Directions Order issued on 21 November 2022, the parties filed written submissions. Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal. The matter was decided on the papers. I have carefully considered all submissions and attachments. I have determined not to approach the writing of this decision by summarising the entirety of those materials but will instead refer to the parties' key positions in my consideration.Grounds of appeal The question to be decided in this case is whether or not the decision to substantiate the allegations on the balance of probabilities was fair and reasonable. That question is informed by several considerations stemming from the Appellant's grounds of appeal. The Appellant's grounds of appeal fall under the following categories:·the findings were incorrectly reached; ·unproven findings and unreliable evidence;

Ratio Decidendi

Legal Principle Established

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