Lam v Gold Coast Hospital and Health Service

Case [2021] ICQ 10

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Lam v Gold Coast Hospital and Health Service [2021] ICQ 010

PARTIES:

ROGER ERIC CHUI CHUN LAM

(appellant)

v
GOLD COAST HOSPITAL AND HEALTH SERVICE

(respondent)

FILE NO/S:

C/2020/10

PROCEEDING:

Appeal

DELIVERED ON:

24 June 2021

HEARING DATE:

24 August 2020

MEMBER:

Davis J, President

ORDER/S:

Appeal is dismissed.

CATCHWORDS:

INDUSTRIAL LAW - QUEENSLAND - DISMISSALS - UNFAIR DISMISSAL - WHAT CONSTITUTES - where the appellant was a Protective Services Officer at the Gold Coast Hospital - where it was alleged that the appellant had used excessive force to subdue patients at the hospital on three separate occasions - where it was alleged that in breach of a code of conduct the appellant had made inappropriate comments about a patient - where the respondent found all four allegations proved and dismissed the appellant - where the appellant sought reinstatement under the provisions of the Industrial Relations Act 2016 - where the Queensland Industrial Relations Commission (QIRC) found the three allegations of use of excessive force substantiated - where the QIRC found the fourth charge not substantiated - where the QIRC dismissed the application for reinstatement - where the appellant appealed - whether the QIRC ought to have concluded that the dismissal was harsh, unjust or unreasonable - whether the QIRC ought to have found misconduct - whether the QIRC ought to have accepted the evidence of an expert witness on the justification of the application of force - whether natural justice and procedural fairness was afforded to the appellant in relation to disclosure of footage of incidents other than the four upon which dismissal was based - whether a witness called in the QIRC ought to have acted as advocate for the respondent - whether any unfairness was suffered by the appellant as a result of the witness acting as advocate for the respondent - whether the QIRC ought to have rejected the evidence of the appellant

Hospital and Health Board Act 2011, Part 9
Industrial Relations Act 2016, Ch 8, Pt 2, s 316, s 317, s 320, s 321, s 557
Public Service Act 2008, Ch 6, Pt 2, s 188A

CASES:

Briginshaw v Briginshaw [1938] 60 CLR 336, cited
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348, cited
FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33, followed
Fox v Percy (2003) 214 CLR 118, followed
House v The King (1936) 55 CLR 499, followed
Lee v Lee (2019) 93 ALJR 993, cited
Li v The Queen (2003) 139 A Crim R 281, followed
Mathieu v Higgins [2008] QSC 209, cited
Norbis v Norbis (1986) 161 CLR 513, followed
R v R (1989) 18 NSWLR 74, cited
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, cited
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, cited
The Australian Workers’ Union of Employees, Queensland…

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AGLC
Lam v Gold Coast Hospital and Health Service [2021] ICQ 10
Case
[2021] ICQ 10
Decision Date

CaseChat Overview and Summary

The appeal in Lam v Gold Coast Hospital and Health Service concerns the dismissal of the appellant, Mr Lam, who was employed as a Protective Services Officer at the Gold Coast Hospital. The respondent, the Gold Coast Hospital and Health Service, dismissed Mr Lam following allegations of using excessive force on three occasions and making inappropriate comments about a patient. The Queensland Industrial Relations Commission (QIRC) upheld three of the four allegations and dismissed Mr Lam's application for reinstatement. The appellant's grounds for appeal were the QIRC's findings of misconduct, the justification of the use of force, the fairness of the process, the role of a witness, and the acceptance of evidence.

The court considered whether the QIRC erred in concluding that the dismissal was not harsh, unjust, or unreasonable. The court also examined whether the QIRC correctly found misconduct, accepted expert evidence on the justification of force, and ensured natural justice and procedural fairness. Additionally, the court reviewed whether a witness acted as an advocate for the respondent and whether any unfairness resulted from this. Finally, the court evaluated whether the QIRC should have rejected the appellant's evidence.

The court found that the QIRC's assessment of witnesses was not erroneous, and the appellant's grounds for appeal did not demonstrate any error of law or fact. The court held that the QIRC's decision to uphold three of the allegations and dismiss the appeal was correct. The expert evidence was deemed appropriate, and no procedural unfairness was identified in the process. Consequently, the appeal was dismissed.

In conclusion, the court dismissed the appeal and upheld the QIRC's decision. The court found no errors in the QIRC's assessment of the evidence or process, and the appeal did not establish any grounds for overturning the QIRC's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ground (b) fails.Appeal ground (c): The Deputy President erred in giving improper weight to the evidence of Mr Matthew Jackson Mr Lam, in his second affidavit,[31] pointed out that Mr Jackson was an employee of the Health Service and asserted that he was not “an impartial subject matter expert”. However, no challenge was made to Mr Jackson’s expertise and no objection was raised in the QIRC to the admission of his evidence. The fact that Mr Jackson is employed by the Health Service does not render his evidence partisan so that he does not qualify to give independent expert evidence.[32] [31]Sworn 11 September 2019; see paragraph [15].[32]Li v The Queen (2003) 139 A Crim R 281 at [71], FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [15] and Wood v R (2012 84 NSWLR 581 at [728]. Mr Harding’s cross-examination of Mr Jackson was, in my view, well planned and executed. He began by extracting admissions that while Mr Jackson had trained Mr Lam, he did not speak to him before expressing his opinion in the current case. He got from Mr Jackson that Mr Lam had not struggled in his training and he made the point that theoretical training is often quite divorced from an actual, and often very stressful, situation in the workplace where a patient had to be controlled by physical restraint. Mr Harding then cross-examined Mr Jackson by reference to his affidavit and the body cam footage which he played to him. He drew Mr Jackson’s attention to the actions of another PSO who was not criticised. Although, in my view, Mr Harding handled Mr Jackson’s evidence well, he did not put to him that he had coloured his evidence to favour the Health Service. Apart from the fact that Mr Jackson was employed by the Health Service, there is nothing that would have supported such a suggestion. Mr Jackson’s affidavit, at least on its face, showed well-considered opinions. In the absence of some expert evidence to contradict Mr Jackson, a suggestion of bias would have been fraught with forensic risk. The Deputy President heard evidence from both Mr Jackson and Mr Lam and preferred the evidence of Mr Jackson. There is no demonstrated basis to upset the findings based on Mr Jackson’s evidence. This ground of appeal fails.Appeal ground (d): The Deputy President denied the appellant natural justice and procedural fairness and erred at law by allowing into evidence footage which had not been disclosed to the applicant prior to the hearing and which was not relevant to matters in issue in the proceeding It was initially unclear to me what footage was allegedly not disclosed prior to the hearing. In Mr Jackson’s affidavit, he refers to: “Copies of BWC footage are attached and marked as MJ-4 (available on request)”.[33][33]Paragraph 41 of the affidavit. In Mr Lam’s second affidavit, he says this:“(e)The footage does not show any patients or staff members at risk of injury or who were injured due to my conduct …”[34]And later:“… It clearly shows in the footage that PSS Spencer twisted the patient’s left wrist and applied pressure to cause pain to the patient. …”[35][34]Paragraph 2(e).[35]Paragraph 5.

Decision

Reasons for decision

No error of law or fact is shown in his assessment of the witnesses.Conclusion/Orders Mr Lam has not made out any of his grounds of appeal and the appeal must be dismissed. I order that the appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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