Loveridge v State of Queensland (Queensland Ambulance Service) (No. 2)
[2023] QIRC 207
•24 July 2023 19, 20, 21, 22, 25, 26 and 27 October 2021 9 February 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Loveridge v State of Queensland (Queensland Ambulance Service) (No. 2) [2023] QIRC 207 |
PARTIES: | Loveridge, Jonathan Charles (Applicant) v State of Queensland (Queensland Ambulance Service) |
CASE NO.: | TD/2020/116 |
PROCEEDING: | Application for reinstatement |
DELIVERED ON: HEARING DATES: | 24 July 2023 19, 20, 21, 22, 25, 26 and 27 October 2021 |
MEMBER: HEARD AT: | Hartigan DP Brisbane |
| ORDER: | 1. The application for reinstatement is dismissed. 2. If the Respondent intends to apply for any costs order, the application for costs is to be filed and served within 28 days. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - where applicant employed as an Advanced Care Paramedic with Queensland Ambulance Service - where applicant and another Advanced Care Paramedic responded to a call at a residential aged care facility - where elderly patient with physical injuries on her arms was suffering from advanced dementia - where patient behaved aggressively with some resistance being transferred to the stretcher - where applicant observed to strike or slap the patient across the face - where disciplinary proceedings under sections 18A and 18 B of the Ambulance Service Act 1991 - where investigation carried out - where allegation substantiated - where applicant's employment was terminated for alleged serious misconduct - whether dismissal harsh, unjust or unreasonable - application dismissed |
LEGISLATION: CASES: | Industrial Relations Act 2016 (Qld), s 316, s 317, s 320, s 321 and s 322. Ambulance Service Act 1991 (Qld) s 18A and s 18B Health Practitioner Regulation National Law (Queensland), s 156 Blows v Townsville City Council [2016] QIRC 66 Bostik (Aust) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28 Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467 Coleman v State of Queensland (Department of Education) [2020] QIRC 032 Flegg v CMC & Anor [2014] QCA 42 Gilmour v Waddell & Ors [2019] QSC 170 Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258 Laegal v Scenic Rim Regional Council [2018] QIRC 136 Mathieu v Higgins [2008] QSC 209 O'Neill v State of Queensland (Queensland Ambulance Service) [2021] QIRC 370 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Queensland Teachers' Union of Employees (for Norman Wayne Armstrong) v State of Queensland acting through Department, Education, Training and Arts [2009] QIRC 11 Nesbit v Metro North Hospital and Health Service [2020] QIRC 66 Stark v P & O Resorts (Heron Island) (1993) 144 QGIG 914 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 |
| APPEARANCES | Mr E. Shorten of Counsel instructed by Ms E. Voulcaris of Devaneys Law for the Applicant. Mr J. Marr of Counsel instructed by Ms C. Selby of Crown Law for the Respondent. |
Reasons for Decision
The application
Mr Jonathon Loveridge ('Mr Loveridge') applies for reinstatement[1] following the termination of his employment from his substantive position as an Advanced Care Paramedic with the Queensland Ambulance Service ('QAS') working out of the Burleigh Heads Ambulance Station. Mr Loveridge contends that the dismissal was harsh, unjust and unreasonable.[2]
[1] Industrial Relations Act 2016 (Qld), s 317.
[2] Applicant's closing submissions filed 22 December 2021, [1.2], [1.18].
Mr Loveridge's employment was terminated for misconduct. Relevantly, the allegation that was substantiated and caused Mr Loveridge's employment to be terminated was that on 11 June 2019 Mr Loveridge struck a patient ('the allegation').[3] The patient was an elderly dementia patient.
[3] In this decision all references to 'the patient' will be shown as such to protect the patient's identity.
Mr Loveridge seeks the following relief in his application: [4]
· Reinstatement in his former position (or as nearly as is possible) without prejudice to the employee's former conditions of employment and remuneration lost between the date the dismissal took effect 20 November 2020 and the date of reinstatement; or
· Re-employment in another position that the employer has available and that the Commission considers suitable.
· However, if the Commission considers reinstatement or re-employment would be impracticable, the Applicant seeks that the Commission make an order that the employer pay the employee an amount of compensation the Commission considers appropriate.
[4] Application for reinstatement filed 9 December 2020, [6].
Prior to the termination of employment an investigation was commenced, and evidence was gathered in respect of the allegation. Following a show cause process, the QAS determined that the allegation was substantiated and that the conduct amounted to misconduct and formed a ground for Mr Loveridge to be disciplined pursuant to s 18A(1)(b) of the Ambulance Service Act 1991 (Qld) ('AS Act') ('the disciplinary finding decision').
Following a further show cause process, Mr Loveridge was dismissed from his employment on 20 November 2020 ('the disciplinary penalty decision').
Mr Loveridge contends that the dismissal was unfair in that it was harsh, unjust or unreasonable.[5] The phrase "harsh, unjust and unreasonable" was considered in Bostik (Aust) Pty Ltd v Gorgevski (No 1)[6] by the Full Court of the Federal Court.[7] After stating that the words were ordinary non-technical words intended to apply to a variety of situations, the Full Court concluded that "a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable."[8] The Full Court noted that relevant considerations included, the circumstances leading to the decision to dismiss and also the effect of the decision on the employee. It was further noted that any harsh effect on the individual employee, whilst clearly relevant, is not conclusive. Other matters should be considered, including the gravity of the conduct.
[5] Industrial Relations Act 2016 (Qld) s 316.
[6] (1992) 36 FCR 20, 28.
[7] Applied in Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467 (McHugh and Gummow JJ).
[8] Ibid.
The grounds Mr Loveridge rely on in seeking reinstatement include the following:
(a) The investigation miscarried and the evidence was contaminated; and
(b) The relevant decision-makers were led into error by the investigation report and otherwise carelessly progressed the matter.
I will consider these grounds within the context of the matter and I will also consider the matters that I must have regard to pursuant to s 320 of the Industrial Relations Act 2016 (Qld) ('IR Act').
Mr Loveridge carries the onus of proving that the dismissal was unfair pursuant to s 316 of the IR Act.[9]
[9] Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258 (Hall P).
However, as Mr Loveridge was dismissed following a disciplinary process under the AS Act where the chief executive or delegate has to be reasonably satisfied that the employee has been guilty of misconduct, it will fall upon the QAS to establish, to the reasonable satisfaction of the Commission, that Mr Loveridge was guilty of the conduct as alleged.[10]
[10] Coleman v State of Queensland (Department of Education) [2020] QIRC 032; Gold Coast Health District v Walker [2001] QIC 63; (2001) 168 QGIG 258, 259 (Hall P).
A finding that Mr Loveridge's dismissal was not authorised by the relevant provisions of the AS Act is not determinative of whether Mr Loveridge's dismissal was unfair.[11] However, if such a finding were made, and it was not compatible with the understanding between Mr Loveridge and the QAS about the circumstances in which the QAS was liable to dismiss, it would "…be but a short step to conclude that the dismissal was unjust"[12].
[11] Gold Coast Health District v Walker [2001] QIC 63; (2001) 168 QGIG 258, 259.
[12] Gold Coast Health District v Walker [2001] QIC 63; (2001) 168 QGIG 258, 259; Queensland Teachers' Union of Employees (for Norman Wayne Armstrong) v State of Queensland acting through Department, Education, Training and Arts [2009] QIRC 11, [203] and [204].
After the conclusion of the evidence and after the filing of written submissions, counsel for the QAS, submitted, seemingly for the first time during oral closing submissions, that the Commission should not follow a line of authorities that included the decision of Coleman v State of Queensland (Department of Education) ('Coleman').[13] The relevant principle is that which I have referred to in paragraph [10] above and appears in Coleman at paragraph [69] as follows:[14]
In applications by dismissed employees under ch 8, pt 2 of the Act, following the employee being dismissed after a discipline process under the PS Act, where the relevant chief executive or delegate has to be reasonably satisfied the employee has been guilty of misconduct, the onus of proof falls upon the respondent to establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct as alleged.
…
[13] [2020] QIRC 032.
[14] Coleman v State of Queensland (Department of Education) [2020] QIRC 032, [69].
Relevantly, it was submitted by counsel for the QAS that on the proper construction of the IR Act together with the AS Act, the relevant inquiry for the Commission to make is whether it was reasonably open, on the evidence, for the decision maker to be reasonably satisfied that misconduct occurred.[15]
[15] T8-43, ll 25-35.
In support of its position, the QAS referred to the decision of Laegal v Scenic Rim Regional Council[16] ('Laegal') which in turn referred to the decision of Stark v P & O Resorts (Heron Island)[17] ('Stark'). The relevant extract from Stark referred to in Laegal was as follows:[18]
Where… an application... is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task of the Commission is to assess whether it should intervene to protect the applicant against a decision which is fundamentally one for the employer to make. Ordinarily intervention will be justified only where the employer has abused the right to dismiss. Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, will be held immune from interference by the Commission….
…[16] [2018] QIRC 136.
[17] (1993) 144 QGIG 914.
[18] Laegal v Scenic Rim Regional Council [2018] QIRC 136, [66].
However, the reference to Stark in Laegal was not made in consideration of where the onus lies. It was referenced in the third last paragraph of the decision when consideration was being made as to whether the termination was "harsh, unjust or unreasonable". Against the QAS's position with respect to the approach to be taken to determine where the onus lies is the line of authorities commencing with Gold Coast District Health Service v Walker[19] ('Walker') and more recent decisions including Coleman[20]. I also followed the approach of Walker and Coleman in Nesbit v Metro North Hospital and Health Service.[21]
[19][2001] QIC 63; (2001) 168 QGIG 288.
[20] [2020] QIRC 032.
[21] [2020] QIRC 66 at [9]-[10].
It was the QAS's submission that the principle enunciated in Coleman[22] should not be adopted in this proceeding.[23]
[22] At [69].
[23] T8-84, ll 11-37.
However, the QAS did not submit how the evidence, including fresh evidence, before the Commission should be dealt with if the approach in Coleman was not to be followed. I consider the way that both parties ran their respective case (until at least the closing submissions) was in such a way so as to adduce evidence that would or would not establish to the reasonable satisfaction of the Commission, that Mr Loveridge was guilty of the conduct alleged.
In the circumstances of this matter and the way in which the onus question was raised and argued by the QAS, I am not presently persuaded that the approach in Coleman should not be followed.
Further, the civil standard of proof, being on the balance of probabilities, applies to the determination to be made in this matter. The principles enunciated in Briginshaw v Briginshaw[24] ('Briginshaw') apply to the relevant standard of proof. Whilst not altering the civil standard of proof, the principles in Briginshaw, identify that the nature and gravity of the subject matter may be considered when determining if the standard of proof has been met.[25]
[24]Briginshaw v Briginshaw (1938) 60 CLR 336.
[25] Ibid 361-362 (Dixon J).
It is not in dispute between the parties that the Briginshaw[26] principle applies.
[26] Ibid.
Issues in dispute
The issues for my consideration are:
(a) did Mr Loveridge engage in the conduct as alleged?;
(b) to the extent that Mr Loveridge did engage in the conduct as alleged, was he guilty of 'misconduct' within the meaning of the AS Act, s 18A(1)(b) and s 18A(5)(a)?;
(c) was termination of Mr Loveridge's employment harsh, unjust or unreasonable within the context of s 320 of the IR Act?; and
(d) if so, whether any remedies flow from the termination of employment?
Statutory framework and relevant principles
The Ambulance Service Act 1991
Mr Loveridge was terminated in purported reliance on s 18B of the AS Act. Relevantly, ss 18A and 18B of the AS Act provide as follows:
18A Grounds for discipline
(1)The chief executive may discipline a service officer if the chief executive is reasonably satisfied the officer has -
...
(b) been guilty of misconduct; or
...
(5) In this section -
misconduct means -
(a) inappropriate or improper conduct in an official capacity; or
(b)inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the ambulance service.
Example of misconduct -
victimising another service officer in the course of the other officer's employment in the ambulance service
responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.
18B Disciplinary action that may be taken against a service officer generally
(1)In disciplining a service officer, the chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.
Examples of disciplinary action –
· termination of employment
· reduction of classification level and a consequential change of duties
· transfer or redeployment to other ambulance service employment
· forfeiture or deferment of a remuneration increment or increase
· reduction of remuneration level
· imposition of a monetary penalty
· if a penalty is imposed, a direction that the amount of the penalty be deducted from the officer’s periodic remuneration payments
· a reprimand
…
In determining the reasonableness of a decision under ss 18A or 18B of the AS Act, the question is whether the decision, "...was so unreasonable that it lacked an evident and intelligible justification when all relevant matters were considered".[27]
[27] See O'Neill v State of Queensland (Queensland Ambulance Service) [2021] QIRC 370, [44] applying Gilmour v Waddell & Ors [2019] QSC 170. See also Flegg v CMC & Anor [2014] QCA 42, [3].
Mr Loveridge submits that if the Commission is not satisfied he is guilty of the alleged misconduct, it would find there was no evident and intelligible justification for his dismissal pursuant to the AS Act. Mr Loveridge argues that had the QAS fairly and carefully investigated the Incident and effected the disciplinary process, it would not have arrived at the decision he was guilty and ought to be dismissed:[28]
... The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided.
(citations omitted)
[28] Applicant's closing submissions filed 22 December 2021, [2.4]-[2.6].
The QAS submitted that in Mathieu v Higgins,[29] Daubney J considered the meaning of 'misconduct' in the context of the then applicable Queensland Ambulance Service Discipline Policy, s 10(a). The term ''misconduct'' was defined in that policy as ''disgraceful or improper conduct in an official capacity''.[30] Justice Daubney cited with approval the reasoning of Kirby P (as his Honour then was) in Pillai v Messiter (No 2),[31] and held that:[32]
... "misconduct," to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.
…[29] [2008] QSC 209.
[30] Ibid [18].
[31] (1989) 16 NSWLR 197.
[32] Mathieu v Higgins [2008] QSC 209, [26].
In Coleman,[33] Merrell DP referred to this definition in the context of determining the application of 'misconduct' in s 187(1)(b) and (4) of the Public Service Act 2008 (Qld) ('the PS Act'). The definition of 'misconduct' in the AS Act, s 18A(5)(a), is in the same terms as the definition in the PS Act.[34]
[33] Coleman v State of Queensland (Department of Education) [2020] QIRC 032.
[34] Respondent's closing submissions filed 23 December 2021, [31].
In Coleman, it was noted that other than the definition of 'misconduct' in s 187(4), the PS Act did not provide any guidance as to what it is meant by 'inappropriate' or 'improper' conduct and went on to find:[35]
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.
[35] Coleman v State of Queensland (Department of Education) [2020] QIRC 032, [62].
I consider that a similar approach should be adopted in respect to the meaning of 'misconduct' within the context of s 18A(1)(a) and (5)(a) of the AS Act.[36]
[36] Respondent's closing submissions filed 23 December 2021, [33].
The Industrial Relations Act 2016
Mr Loveridge seeks reinstatement or re-employment pursuant to Chapter 8, Part 2 of the IR Act on the basis he was unfairly dismissed. Whether or not a dismissal is 'unfair' within the meaning of s 316 of the IR Act is a different consideration to whether or not the decision was reasonable under the AS Act.
Section 316 of the IR Act provides when a dismissal is unfair as follows:
316 When is a dismissal unfair
A dismissal is unfair if it is harsh, unjust or unreasonable.
Section 320 of the IR Act provides for the matters that must be considered when determining if the dismissal was unfair as follows:
320 Matters to be considered in deciding an application
(1)In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider –
(a) whether the employee was notified of the reason for dismissal; and
(b) whether the dismissal related to -
(i)the operational requirements of the employer’s undertaking, establishment or service; or
(ii)the employee’s conduct, capacity or performance; and
(c) if the dismissal relates to the employee’s conduct, capacity or performance -
(i)whether the employee had been warned about the conduct, capacity performance; or
(ii)whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
(d) any other matters the commission considers relevant.
…
If the Commission is satisfied the dismissal was unfair, the Commission is empowered by s 321 of the IR Act to order reinstatement. Under s 322 of the IR Act the Commission also has the power to order compensation if it considers reinstatement impracticable.[37]
[37] Respondent's closing submissions filed 23 December 2021, [21]-[22].
Background
Mr Loveridge had been employed with the QAS since 23 July 2007. On 20 November 2020 his employment was terminated[38] effective immediately following a show cause disciplinary process. At the time of his termination, Mr Loveridge was employed as an Advanced Care Paramedic 2 stationed at the Burleigh Heads station.[39]
[38] Exhibit 2: pp 672-683, Letter from Deputy Commissioner Craig Emery, ASM to Mr Loveridge dated 20 November 2020.
[39] Respondent's closing submissions filed 23 December 2021, [36].
As at 11 June 2019, Mr Loveridge had undertaken relevant training commencing on 25 September 2008 until 1 June 2019 which included Managing Personal Stressors in the Work Environment; Situational Awareness for Everyday Encounters; Occupational Safety Training Violence Prevention and Q4 Tier 1 Geriatric Assessment.[40]
[40] Exhibit 3, Learning History - Jonathan Loveridge printed on 9 March 2021.
Supervision of Ms Baxter
Ms Baxter commenced at the Burleigh Heads station in the Graduate Paramedic Program in December 2018.[41] At her own request, Ms Baxter's period of supervision was extended to enable her to gain more experience in high acuity work.[42] In June 2019 Ms Baxter was under this extended period of supervision.[43]
[41] T2-79, ll 23-26.
[42] T2-80, ll 3-4; T2-80, ll 18-33.
[43] T2-80, l 37.
Mr Loveridge was rostered together with Ms Baxter during the time she was undertaking the Graduate Paramedic Program and also during her extended supervision period.[44] Mr Loveridge was Ms Baxter's mentor and supervisor.[45]
[44] T2-85, ll 32-36; T2-86, ll 20-33.
[45] T1-30, l 27 to T1-31, l 2; T2-86, ll 5-13.
Attendance at Opal Varsity Rise
On 11 June 2019, Mr Loveridge was rostered on a 12-hour shift commencing at 7.00am and finishing at 7.00pm.[46] His partner on that shift was Ms Baxter. At 6.13pm Mr Loveridge and Ms Baxter were dispatched to attend at an aged care residential facility, the Opal Varsity Rise, 14 Lake Street, Varsity Lakes ('Opal Varsity Rise').[47]
[46] T1-86, ll 44-45; T2-89, ll 24-29.
[47] T1-87, ll 24-47.
The Incident Detail Report[48] indicates the following information in relation to the nature of the call out to Opal Varsity Rise, ''DX very aggressive - has open wounds on her arms and won't keep dressings home [sic] - has attacked staff and residents. Pt located on ground floor".
[48] Exhibit 9.
Mr Loveridge and Ms Baxter arrived at Opal Varsity Rise at 6.27pm[49] and departed with the patient at 6.44pm,[50] arriving at the Robina Hospital approximately 10 minutes later.[51]
[49] T1-88, ll 5-46.
[50] T1-89, ll 3-12.
[51] T1-89, ll 21-37.
It was during their attendance at Opal Varsity Rise that it is alleged Mr Loveridge struck the patient. The evidence with respect to the allegation will be dealt with further below.
The complaint – alleged assault of elderly patient at Opal Varsity Rise and subsequent steps
The General Manager of Opal Varsity Rise, Ms Carolyn Provenzano telephoned the QAS Operations Centre at approximately 7.16pm on 11 June 2019 this telephone call was recorded[52] on the QAS Complaint Referral Form.[53]
[52] Exhibit 34.
[53] Exhibit 2: p 231.
The Complaint Referral Form included the following details of the complaint:
…
Complaint against male officer on QAS unit.
Complainant stated that the male officer grabbed the patient by the face and slapped her.
He then verbally abused her, threatening her not to touch him again.
She states male officer then told nursing facility staff off for wasting hospital resources and told them that they should be managing the patient in the nursing facility.Complainant states that as per the Aged Care Act, she will be lodging a report with QPS and also informing the family. She has requested to be contacted within the next 12 hours with the accused officer's name so it can be included in her police report.
…
At approximately 7.25pm on 11 June 2019, Mr Paul Young, the then acting Senior Operations Supervisor, QAS was provided with a copy of the QAS Complaint Referral Form.[54]
[54] T6-3, l 25 to T6-4, l 13.
Mr Young requested Ms Adriana Barnes, the acting Operations Supervisor, to meet with Mr Loveridge and Ms Baxter to obtain their version of events.
The evidence is that Ms Barnes attended at the Robina Hospital and spoke with both Mr Loveridge and Ms Baxter at the same time. Both Mr Loveridge and Ms Baxter denied any wrongdoing by Mr Loveridge with respect to the patient while at Opal Varsity Rise. It was from this point in time that both Mr Loveridge and Ms Baxter were aware that the allegation had been made.
Ms Barnes included her account of her conversation with Mr Loveridge and Ms Baxter in an email sent to Mr Young.
Mr Young attended Opal Varsity Rise and met with Ms Provenzano at approximately 8.10pm.[55] During this attendance, Mr Young was provided with copies of handwritten statements under the hand of Ms Samantha Masih, Assistant in Nursing and Mr Jack Bainbrigge, Lifestyle Diversional Therapist, Opal Varsity Rise.[56] Ms Provenzano advised Mr Young he could collect a third statement the following day.[57]
[55] T6-5, ll 35-36; T5-71, ll 33-38; Also T5-71, ll 33-38.
[56] Exhibit 2: pp 236-237; T5-72, ll 10-16; T6-6, ll 32-47.
[57] T6-8, ll 16-17. See also Mr Young's email at 1.57 am 12 June 2019 (Exhibit 2, p 234) which records: ''Carolyn [Provenzano] had not witnessed the alleged assault but had informed me that three other staff at the residence were writing statements''.
Mr Young also spoke to Ms Masih and Ms Church, Enrolled Nurse, whilst he was at Opal Varsity Rise.
Mr Young made a contemporaneous note of his attendance at Opal Varsity Rise which he sent to himself by email later that evening.[58] Mr Young did not return to Opal Varsity Rise to collect the third statement the following day.
[58] Exhibit 2: p 234.
The telephone calls on 12 June 2019 from Ms Bennett
In her evidence, Ms Bennett, Officer in Charge of the Burleigh Heads station said she made telephone calls on 12 June 2019 to Mr Loveridge and Ms Baxter as she had been notified of the complaint made against Mr Loveridge. Ms Bennett went on to say that during her telephone conversation with Mr Loveridge he told her that he did not do the things as alleged.[59]
[59] T2-66, ll 35-41; Respondent's closing submissions filed 23 December 2021, [65] and [67].
Ms Bennett also spoke to Ms Baxter and indicated her support for Mr Loveridge. Ms Baxter's evidence was that she felt stressed and pressured to go along with Mr Loveridge's version of events following the telephone conversation.
Referral of complaint to the Ethical Standards Unit
On 19 June 2019, Mr Chris Draper, whilst relieving in the position of Assistant Commissioner, Gold Coast LASN received an email from Ms Jenny Gribaudo Executive Manager, Employee Relations concerning the referral of the complaint to the Ethical Standards Unit (ESU). Ms Gribaudo indicated that the ESU had assessed the complaint as 'suspected corrupt conduct' and referred the matter back to the QAS to manage.[60]
[60] Exhibit 38: email 19 June 2019 at 5.33 pm from Ms Gribaudo to Mr Draper.
Ms Gribaudo also stated the matter had been reported to the Queensland Police Service (QPS) by the nursing home.
The QPS subsequently advised Mr Armstrong then Acting Assistant Commissioner, Gold Coast LASN, that they would not be pursuing the matter further.
20 June 2019: Initial meeting with Mr Loveridge and steps taken
On 20 June 2019 Mr Loveridge and his support person attended a meeting with Mr Draper and Ms Jennifer Curtis, Senior HR Consultant, Gold Coast LASN.
Ms Curtis made a written record of the meeting and following the meeting, emailed it to Ms Jennifer Gribaudo, and Mr Draper.
Ms Curtis' written record of the meeting notes that the following matters were discussed:
(a) the ESU had reviewed the complaint and assessed it as ''suspected corrupt conduct";
(b) the QAS were waiting on advice from ''an external agency'' prior to proceeding with the matter;
(c) Mr Loveridge would be working with another officer and the QAS would ensure that he was not rostered with Ms Baxter; and
(d) Mr Loveridge would be provided with an opportunity to provide his version of events.
Mr Tony Armstrong returned from leave on or about 24 June 2019. He was briefed in respect of the alleged incident at Opal Rise by Mr Draper and Ms Curtis, and he states that he received a copy of Mr Young's 12 June 2019 2.03am email and attachments.
On 12 August 2019, Mr Armstrong and Ms Curtis met with Ms Baxter with Ms Bennett acting as her support person. During the course of the meeting Ms Baxter indicated that she did not see what Mr Loveridge was accused of doing.
Following the meeting with Ms Baxter, Mr Armstrong sent an email to Ms Gribaudo on 13 August 2019 and advised that he was unable to ''make a decision regarding the complaint'' and subsequently determined to refer the matter to be formally investigated as a workplace Investigation.
On 22 August 2019, Mr Armstrong sent an email to Opal Varsity Rise seeking to arrange interviews with the staff who witnessed the Incident.[61]
[61] Exhibit 37: email from Mr Armstrong to Ms Victoria South at Opal Varsity Rise dated 22 August 2019 at 1.23 pm and Ms South's email in reply of 22 August 2019 at 1.37 pm.
On 23 August 2019, Mr Armstrong directed that the Terms of Reference for the workplace investigation be prepared.[62] These were signed off by Assistant Commissioner John Hammond on 18 September 2019 whose decision it was to instigate the formal workplace investigation.[63]
[62] Exhibit 37: email from Mr Armstrong to Ms Curtis (copies to Ms Gribaudo) of 23 August 2019 at 8.36 am. See also T6-49, l 37 to T6-50, l 9.
[63] T6-72, l 35 to T6-73, l 2; T6-73, l 13.
The Investigation
The Terms of Reference specified the allegations for investigation. Relevant to this proceeding is the following allegation:
4. That on 11 June 2019, Officer Jonathan Loveridge assaulted [the patient].
The investigator appointed was Ms Sandra Brightwell, a Principal Complaints Officer employed in the Office of the Medical Director. It was said that Ms Brightwell was independent of the QAS Gold Coast LASN although she was an employee of the QAS.[64]
[64] T6-75, ll 37-45.
Mr Loveridge was given notice of the workplace investigation in a letter outlining the allegations insofar as they concerned him and put him on notice that he was required to attend an interview and meet with Mr Hammond and Ms Curtis on 11 November 2019.[65]
[65] Exhibit 2: pp 18-19.
On 12 November 2019, Ms Baxter was also notified of the workplace investigation in person with Mr Hammond and Ms Curtis and was provided a letter which outlined the allegations that concerned her, and the time and place of her interview.[66]
[66] T3-30, ll 1-10; Exhibit 43.
Ms Brightwell met with and conducted recorded interviews with the following witnesses:
a. Jack Bainbrigge on 2 October 2019;[67]
b. Samantha Masih on 22 October 2019;[68]
c. Tyharna Church on 4 November 2019;[69]
d. Amy Baxter on 21 November 2019;[70]
e. Jonathan Loveridge on 27 November 2019;[71] and
f. Natasha Bennett on 11 December 2019.[72][67] Exhibit 2: pp 241-281.
[68] Exhibit 2: pp 282-315.
[69] Exhibit 2: pp 315-346.
[70] Exhibit 2: pp 357-411.
[71] Exhibit 2: pp 425-532.
[72] Exhibit 2: pp 347-356.
As part of the investigation, Ms Brightwell emailed Ms Baxter a document entitled ''Clinical Question for Baxter CN & SJB edits''.[73] Ms Brightwell requested Ms Baxter to respond to 'a number of adverse comments about you during Mr Loveridge's interview' and to respond to additional questions about the matter.
[73] Exhibit 2: pp 414-416.
Ms Baxter responded on 16 December 2019. In addition to providing a response to the alleged adverse comments, Ms Baxter significantly provided the following altered account of the incident:[74]
NOTE: When I was doing up the lower leg seatbelts ACP Loveridge was leaning over the pt attempting to do up her seatbelts, the patient became very agitated and aggressive attempting to strike him in the face and yelling at him. As this was happening I walked quickly around to the head of the stretcher to get the shoulder seatbelts, and as I walked around I heard officer Loveridge raise his voice at her to tell her to stop, and she hit him in the face, ACP Loveridge raised his right hand with an open palm, it appeared as though he was going to slap the patient on the left cheek. His hand slowed as he got closer to her cheek and his hand then hit her cheek - from what I can remember I would describe the connection as a light/medium tap, with minimal force behind the motion. I don't believe the force behind the motion was enough to hurt the patient, or leave any marks. The patient's face appeared surprised. I could tell that ACP Loveridge immediately regretted his actions, and at hospital as after we handed over the patient when we were about to leave he stated that he regretted his actions that night and no more was mentioned of the incident.
(underlining added)
[74] Exhibit 2: pp 421-424.
This written response by Ms Baxter is the first occasion on which Ms Baxter altered her version of events by stating that Mr Loveridge's "hand hit [the patient's] cheek".
Ms Brightwell subsequently sent Mr Loveridge an email seeking his response to certain matters arising out of the Investigation interviews, including the additional information provided by Ms Baxter on 16 December 2019.[75]
[75] Exhibit 2: pp 32-33.
Mr Loveridge provided a response[76] to Ms Brightwell's email. His response included the following relevant extract:[77]
Since the complaint was originally reported to me I have been mystified as to how my actions could have been misinterpreted as 'slapping' the patient, as I was originally advised. I have since come to understand how differently people can perceive and recall an event. During the events I have described in the paragraph above both my hands are occupied for the most part, either because the patient is holding on to my hand or vice versa. The only time my right hand is free is when I have pulled the [sic] my hand from of [sic] the patients [sic] grip and quickly reached up above her left shoulder, next to her head, to grab the seatbelt. I believe that this action has mistakenly given the impression that I have struck the patient when this is not the case.
[76] On 27 January 2020.
[77] Exhibit 2: pp 29-32.
The final version[78] of the Investigation Report was issued to Mr Hammond on 28 February 2020.[79]
[78] An earlier version of the Report was issued on 11 February 2020 but was said to contain an error.
[79] T6-85, ll 1-2.
The show cause process
Mr Hammond gave evidence that he considered the investigation report, including its attachments, and determined that the allegations were 'capable of substantiation'.[80]
[80] T6-85, ll 1-27.
On 5 May 2020, Mr Hammond issued a show cause letter that put five separate allegations to Mr Loveridge ('First Show Cause Letter'). Relevantly, Allegation Four was in the following terms:
That on 11 June 2019, you struck [the patient] on the face with your hand.
Attached to the First Show Cause Letter were a number of documents, including the Investigation Report with attachments.[81]
[81] Exhibit 2: p 45.
On 13 June 2020, Mr Loveridge responded to the First Show Cause Letter ('First Show Cause Response').
In the First Show Cause Response, Mr Loveridge complained that the QAS had not sought Ms Baxter's explanation as to why she had withdrawn her original version of events that she did not see Mr Loveridge strike the Patient.
Mr Draper[82] gave evidence that following consideration of the First Show Cause, and in particular, Mr Loveridge's concern that Ms Baxter had not been followed up, he wrote to Ms Baxter and sought further information from her.[83]
[82] Mr Draper had taken over the acting Assistant Commissioner role for the Gold Coast LASN at that time.
[83] Exhibit 28: T7-29, ll 1-21.
Ms Baxter provided a response to this request by correspondence dated 22 July 2020.[84]
[84] Exhibit 29.
On 6 August 2020, Mr Draper subsequently issued a further letter ('Supplementary Show Cause Letter') putting information to Mr Loveridge which was extracted from Ms Baxter's 22 July 2020 response as follows:[85]
I admit that I initially denied seeing/hearing Officer Loveridge hit the patient's cheek with an open hand.
I am deeply remorseful for delay in revealing the truth and I regret not coming forward with this information immediately.
I admit that that was wrong, and that I should have contacted a supervisor as soon as the incident occurred.
If I had my time again, I would have requested back up to help with the patient, and I would have contacted a supervisor.
From this situation I have learnt that no matter how intimidated or fearful of retribution I was, I should have advocated in the patient's best interests.
…[85] Exhibit 2: pp 600-602: Letter to the applicant from Mr Draper of 6 August 2020; See T7-30, ll 21-37.
Mr Loveridge was provided with an opportunity to respond to the Supplementary Show Cause Letter and did so by written response dated 18 August 2020 ('Supplementary Show Cause Response').[86]
[86] Exhibit 2: pp 604 0 608: Letter from the applicant Mr Draper of 18 August 2020.
Mr Draper referred the matter to the Deputy Commissioner, Craig Emery on the basis that Mr Draper did not have the appropriate HR delegation to determine the matter.[87]
[87] Exhibit 48.
Mr Emery received the referral memorandum, together with the relevant documents, on Monday 31 August 2020.[88] As Mr Emery is the relevant decision maker, his evidence as to his process of deliberation is critical to my consideration. I will consider his evidence in further detail below.
[88] T7-75, ll 33-45.
On 8 September 2020, Mr Loveridge was suspended on full pay pursuant to s 18M of the AS Act.[89]
[89] Exhibit 2: p 610.
In Mr Loveridge's Show Cause Response he submitted the following:
I have provided the Investigator with evidence that others may have thought I touched [the Patient's] face when I reached for the seat belt, this has not been put to the witnesses as an explanation.
(Mr Loveridge's alternative version of events).
As a consequence, Mr Emery directed that[90] Ms Brightwell contact the witnesses including Ms Baxter, Ms Masih and Mr Bainbrigge by email[91] to put Mr Loveridge's alternative version of events to them.
[90] T7-80, ll 23-26.
[91] Exhibit 2: pp 642-643.
Ms Baxter provided the following response to Mr Loveridge's alternative version of events:[92]
Good evening Sandra,
I stand by my statement on December 16, 2019, and do not believe that what I saw could have been mistaken in anyway possible. To confirm again, I did see officer Loveridge slap the patient on the left cheek with an open palm.[92] Exhibit 2: p 642: email from Ms Baxter to Ms Brightwell of 29 September 2020 at 8.26pm.
Ms Masih provided the following response to Mr Loveridge's alternative version of events:[93]
Hi there,
I would like to confirm that I stick by my original statement as to what happened that evening at opal varsity rise.
[93] Exhibit 2: p 645: email from Ms Masih to Ms Brightwell of 1 October 2020 at 5.57pm.
Mr Bainbrigge provided the following response to Mr Loveridge's alternative version of events:[94]
Hi Sandra, thank you for your email
I have read your email with the male paramedics [sic] response and QAS's response thoroughly.
I definitely seen [sic] the male paramedic force his hand onto the elderly female residents [sic] face, then slap her. After he her warned twice that he would do so.
My observations were not mistaken, I am sure.And I will stick to my original written statement and verbal statement from 11/06/2019 & 2nd October 2019.
[94] Exhibit 2: p 638: email from Mr Bainbrigge to Ms Brightwell of 2 October 2020 at 1.42pm.
Mr Emery's evidence was that these responses were included in the material considered by him.[95]
[95] T 7-80, ll 40-45.
The disciplinary finding decision
On 6 October 2020, Mr Emery notified Mr Loveridge that he had determined:[96]
(a) that allegations one, two, three and five were not substantiated;
(b) that allegation four was substantiated (the allegation that Mr Loveridge struck the patient); and
(c) that with respect to allegation four, Mr Loveridge was guilty of misconduct within the meaning of s 18(5) of the AS Act.
[96] That on 11 June 2019, you struck [the patient] on the face with your hand.
Mr Emery provided extensive reasons for the disciplinary finding.
Mr Loveridge was further advised that:
(a) he was liable for discipline pursuant to s 18B of the AS Act;
(b) that Mr Emery was giving serious consideration to terminating Mr Loveridge's employment from the QAS although no final determination would be made until Mr Loveridge was given an opportunity to respond; and
(c) his response would be considered in the final determination of the disciplinary action along with other relevant listed considerations.
Mr Loveridge was provided with an opportunity to show cause as to why his employment should not be terminated ('Second Show Cause Letter').[97]
[97] Exhibit 2: pp 614-650: Letter from Mr Emery to applicant on 6 October 2020, together with attachments.
The disciplinary penalty decision
Mr Loveridge sought an extension to respond to the Second Show Cause Letter until 26 October 2020 and subsequently requested that he be permitted to respond orally to the Second Show Cause Letter.
On 26 October 2020, Mr Loveridge, together with his legal representative attended Mr Emery's office and the verbal show cause meeting took place. Mr Michael Anderson was also in attendance with Mr Emery. At the conclusion of the meeting, Mr Loveridge also provided his written response ('Second Show Cause Response').[98]
[98] Exhibit 2: pp 665-671: Letter from Applicant to Mr Emery of 26 October 2020.
By correspondence dated 20 November 2020, Mr Emery notified Mr Loveridge that he had determined to terminate Mr Loveridge's employment, effective as at that date.[99]
[99] Exhibit 2: pp 673-683.
Mr Emery also provided extensive reasons for his determination to terminate Mr Loveridge's employment.
Did Mr Loveridge engage in the conduct alleged in respect of the allegation, and to the extent that Mr Loveridge did engage in the conduct as alleged, did he engage in misconduct within the meaning of s 18A(5) of the AS Act?
The Allegation
Whilst five allegations were initially put to Mr Loveridge during the show cause process only one is relevant to this proceeding. That is because, Mr Emery, in the disciplinary finding decision, found that only one out of the five allegations was substantiated.
The relevant allegation was put in the following terms:
That on 11 June 2019, you struck [the patient] on the face with your hand.
The patient was a resident at Opal Varsity Rise. As noted above, the patient was an elderly dementia patient. The patient was located in a secure ward that accommodated dementia patients. The patient was said to be frail and small in stature and at that time was suffering from advanced dementia.
The QAS alleges that the conduct referred to in the allegation is not conduct that meets the requirements set out in the Clinical Practice Manual ('CPM') and does not meet a standard of the Code of Conduct for the Queensland Public Service, in particular, s 3.1(e).
The CPM was referred to as follows:
…
· The Clinical Practice Manual (CPM) – Use of Force (Attachment 16) states, that the use of force may be a component of pre-hospital care, with the QAS suggesting restraint could be considered only in the following circumstances:
owhen all other alternatives to avoid harm to the patient or others have been considered and are inappropriate or ineffective;
owhen the benefits outweigh the risk and distress (even temporary) that may be caused to the patient;
owhen a patient has the capacity to provide consent and they have done so;
owhere a patient lacks the capacity to consent, such consent has been provided by an appropriate substitute decision-maker, or the healthcare is in accordance with the legal requirements; and
oin accordance with:
§Paramedic Safety Guidelines, when appropriate safety measures have been implemented.
§QAS Clinical Practice Guidelines, Clinical Practice procedures and Drug Therapy Protocols.
§Good clinical practice.
§In accordance with Legal requirements and any relevant law.
· The CPM – Use of Force (Attachment 16) further states, for patients who lack capacity to consent the use of force may be appropriate where:
oThe restraint constitutes 'healthcare' that is, where the practice, as a treatment, has a therapeutic effect upon a patient's physical or mental condition; and should be carried out urgently to:
§meet imminent risk to the adult's life or health; or
§should be carried out urgently to prevent significant pain or distress to the adult and it is not reasonably practical to get consent from a person who may give it under the Guardianship and Administration Act 2000 (Qld) or the Powers of Attorney Act 1998 (Qld).
· The CPM – Use of Force (Attachment 16) also states:
oThe use of force including initiating physical (Note: always undertaken by QPS) or chemical restraint (sedation) on a patient receiving health services is a very serious matter.
…
The Code of Conduct contains the ethics principles and their associated set of values prescribed in the Public Sector Ethics Act 1994. The Code of Conduct sets out the standards of conduct for each ethics principle. The relevant principles include:
(a) Principle 1: Integrity and impartiality;
(b) Principle 2: Promoting the public good;
(c) Principle 3: Commitment to the system of government; and
(d) Principle 4: Accountability and transparency.
The Code of Conduct sets out standards of conduct for each principle. The standards of conduct for Principle 3 includes "3.1(e) Commit to our roles in public service".
Clause 3.1 of the Code of Conduct falls under the heading "Standards of Conduct". Clause 3.1(e) relevantly provides:
3.1 Commit to our roles in public service
Our role is to undertake our duties, and to give effect to the policies of the elected government, regardless of its political complexion.
We will:
e. adhere to the policies, organisational values and organisational documents of our employing agency.
…
Information considered in the show cause process
In making the decision substantiating the allegation, Mr Emery had regard to:
(a) the Investigation Report and attachments;
(b) the First Show Cause Letter;
(c) the First Show Cause Response;
(d) the Supplementary Show Cause Letter;
(e) the Supplementary Show Cause Response;
(f) the transcript from the oral show cause meeting between Mr Emery and Mr Loveridge; and
(g) the emails from Ms Brightwell to, and response from, Ms Baxter, Ms Masih and Mr Bainbrigge.
Included in the Investigation Report is a copy of Mr Loveridge's Safety, Health and Environment Report ('SHE Report').[100] Relevantly, Mr Loveridge drafted the SHE Report[101] following his meeting with Ms Barnes at the Robina Hospital of the evening of 11 June 2019. Consequently, at the time Mr Loveridge wrote the entry he was aware that an allegation had been made and the nature of the allegation. Relevantly, Mr Loveridge records the following:[102]
…
I initially approached the patient with caution. At this time the patient would not make eye contact and appeared distracted. I have moved into her line of sight in an attempt to engage wit her. At this time she has clenched her fist and raised her arm as if to strike me, so I have backed away. As I now have her attention I have explained that I believe she needs to attend hospital and that I would like her to come and sit down on the stretcher. The patient certainly heard me and responded verbally, though nothing comprehensible. I have continued to engage with the patient over the next 10 minutes, talking to her gently and trying to encourage her to the stretcher. I feel that I am making some progress but then the patient has again raised her hand to me and I have had to back away. At this time I have stated, "If you hit me, I will have to defend myself". I once again approached the patient slowly and talking gently. A this point I have been holding my hands out in front of me and that patient has taken my hands in hers with a strong grip squeezing my fingers. Without moving my fingers I have used my thumbs only to gently grip the patient's hands. I have taken this opportunity to slowly walk backwards towards the stretcher, which is only 2 meters behind me. The patient has followed without me exerting any force.
We have then turned around and I have verbally encouraged the patient to sit down on the stretcher, which she has done. I have then been able to release my left hand from her grip and bent down intending to swing her legs up onto the stretcher. While I have been doing so the patient has struck me to the left side of the jaw with her right fist. While the blow was ineffectual and I was not hurt I was shocked and stated loudly "That's assault". The patient appeared somewhat taken aback and at this point I was able to take hold of her right hand. I continued to hold both her hands gently in her lap while my partner and nursing home staff wrapped the patient in a sheet and loosely applied seatbelts, at which point I released the patient's hands.
I then raised the stretcher and then we then made our way to the vehicle and transported the patient to hospital.[100] Exhibit 2: pp 10-16.
[101] Either on 12 or 13 June 2019.
[102] Exhibit 2: p 13.
This extract is relevant as it is the first account Mr Loveridge gave of the evening.[103] Relevantly, Mr Loveridge states that he said the words "If you hit me, I will have to defend myself" and "That's assault" to the patient. Mr Loveridge has consistently denied that he struck the patient. His version of the attendance at Opal Varsity Rise will be considered further below.
Mr Emery's findings
[103] Other than his initial denial to Ms Barnes.
Disciplinary finding decision – substantiation of allegation
Mr Emery determined that the allegation was substantiated on the basis that Mr Emery preferred the evidence of Ms Masih, Mr Bainbrigge and Ms Baxter to the extent that their evidence differed from Mr Loveridge. Relevantly, Mr Emery accepted the evidence from each of Ms Masih, Mr Bainbrigge and Ms Baxter to the extent that they each gave evidence that they observed Mr Loveridge strike the patient on the face.
Mr Emery continued by providing a further basis for the decision by stating:
"… having considered all of the evidence and the corroborating witness statements concerning the tone and number of times you directed warning to the patient such as "if you hit me, I will hit you back"; or "I will defend myself" and "these girls may not defend themselves, but I will", I have discounted the possibility of an act of automation.
Instead you had on a number of occasions warned the patient that you would, in certain circumstances, hit her".
…
Mr Emery further determined that he considered there were grounds for Mr Loveridge to be disciplined on the basis that he is guilty of misconduct.
As noted above, Mr Loveridge was provided an opportunity to the show cause as to why his employment should not be terminated following the substantiation of the allegation.
Evidence before the Commission
The evidence that was considered by Mr Emery in making the decision to substantiate the allegation was tendered into evidence before the Commission.
In addition to that evidence, the Commission also had the benefit of hearing additional evidence.
That evidence included the evidence of the following witnesses:
(a) Mr Loveridge;
(b) Ms Bennett;
(c) Ms Baxter;
(d) Ms Masih;
(e) Mr Bainbrigge;
(f) Ms Provenzano;
(g) Ms Chisango;
(h) Mr Young;
(i) Mr Armstrong;
(j) Mr Hammond;
(k) Ms Wood;
(l) Mr Draper; and
(m) Mr Emery.
Relevantly, Ms Wood's evidence was fresh evidence insofar as she was not a witness interviewed during the investigation and accordingly, her account was not considered by Mr Emery. Whilst I have summarised some of the witnesses' evidence in detail, it is not necessary to provide a summary of the evidence of all of the witnesses but where relevant, I will refer to the evidence of the witnesses below.
The evidence of Mr Loveridge
As noted above, Mr Loveridge is a senior advanced care paramedic with over 13 years' experience. Significantly, he had an unblemished career until the allegation was made and substantiated.
Mr Loveridge has provided his account of 11 June 2019 both in writing and orally. In all accounts provided by Mr Loveridge he has consistently denied that he struck the patient.
The earliest account that Mr Loveridge provided was in the SHE Report. [104] The SHE Report was completed by Mr Loveridge after he had been advised by Mr Barnes of the complaint from Opal Varsity Rise.
[104] Exhibit 2: p 14.
I referred to an extract of the SHE Report above. In the SHE Report, Mr Loveridge also stated, in summary, as follows:[105]
[105] Exhibit 2: pp 2-3.
…
a. Upon arrival, the Patient was presenting as restless and agitated. I was provided a handover by the nurse in charge who detailed the Patient's medical history, including dementia, and informed me that the Patient had been behaving in an unpredictable, aggressive and violent manner prior to my arrival. Based on my observations and discussions with Opal Varsity staff, I formed the view that the Patient needed to attend hospital for urgent medical attention. Given her age, size and physical condition, I assessed the risk that she posed to me as low.
b. I explained to the Patient in words to the effect that I believed she needed to attend hospital and that I would like her to come and sit down on the stretcher. Over the course of the next approximately 20 minutes, Opal Varsity staff, Officer Baxter and I worked towards loading the patient onto a QAS stretcher for transportation to hospital.
c. As I was loading the Patient onto the stretcher, the Patient struck the left side of my jaw with a closed fist. The blow was ineffectual but I was shocked and said loudly "that's assault". The Patient appeared taken aback and I continued to load her onto the stretcher and apply the seatbelts.
d. At approximately 6.44 pm, Officer Baxter and I departed Opal Varsity with the Patient and transported her to Robina Hospital. During transport, she continued to be agitated and non-compliant and on several occasions during the transportation to hospital, the Patient struck me on the knee and thigh (though again these blows were ineffectual).
e. On arrival at Robina Hospital, there was a delay in handing over the Patient due to wait times in the emergency department. During this delay, Officer Baxter and I dressed and bandaged the Patient's wounds. While attending to this task, the Patient again struck me with a closed fist.
f. While waiting in the emergency department of the Robina Hospital with the Patient on the stretcher, a QAS Operations Supervisor entered the emergency department and told me words to the effect that a complaint relating to the Patient had been received from Opal Varsity. I was not provided any further details about the complaint at that time.
g. Officer Baxter and I completed the case by handing over the patient at the Robina Hospital to another QAS crew at approximately 7.50 pm.
…
During cross-examination, Mr Loveridge agreed that he was extra conscientious to record as much detail as possible in the SHE Report as he was aware of the complaint having been made.[106] There is no mention in the SHE report that Mr Loveridge reached up and applied the left shoulder harness seatbelt.[107] This is relevant as Mr Loveridge will later contend that this action is potentially what the witnesses saw when they allege they saw Mr Loveridge strike the patient.
[106] T2-10, ll 27-39
[107] Respondent's closing submissions filed 23 December 2021, [346]-[347]; Exhibit 2: pp 533-537, particularly pp 535-537.
On 27 November 2019, Mr Loveridge participated in a recorded interview with Ms Brightwell. In attendance as his support person was Ms Voulcaris from Delaney Investigations.
During the interview, Mr Loveridge gave his account of events that occurred on 11 June 2019. He stated that upon arriving at Opal Varsity Rise, he and Ms Baxter accessed the dementia wing and spoke to the care staff. He noticed the patient and that she was "absolutely covered in wounds, lacerations" with the worst one "probably a big nine centimetre lac over her left elbow". Mr Loveridge noticed that some of the wounds looked fresh, but they were not actively bleeding.
Mr Loveridge states that he conducted his own assessment of the patient. His evidence was that he preferred to make his own assessment on what was presented rather than take a history because it can be unreliable. Mr Loveridge assessed that the patient needed to be taken to hospital.
Given the agitated state of the patient, Mr Loveridge said that he and Ms Baxter discussed sedating the patient but for several reasons decided not to. Mr Loveridge and Ms Baxter then started to approach the patient to try and coax her onto the stretcher but it was Mr Loveridge who took the lead.
At some point Mr Loveridge took both of the patient's hands in his and guided her to the stretcher. Mr Loveridge relevantly described his account of the sequence of events as follows:[108]
[108] Exhibit 2: pp 442-443.
187. JL …And as we got to the stretcher, I've encouraged her to sit down, and she did. So I'm thinking, oh, this is, this is going really well, maybe this isn't going to be as difficult as I thought. I've asked her to put her legs up on the stretcher, and she's just not comprehending what I'm requesting. So what I've done is I freed my left hand from her grip. She's still holding, prior to that, she's still holding on to both of my hands while she's sitting in the stretcher. So I freed my left hand and went to one knee on the floor at the side of the stretcher and with the intention of lifting her legs and swinging them on to the stretcher. At this point, with her right hand free, she's actually swung and struck me in the face with her right hand.
188. (telephone ringing)
189. JL Excuse me. I'll just shut that off. I apologise. I thought I'd turned that off. She's swung and struck me. She's struck me with a closed fist to the left side of my jaw, but, to be honest, it was ineffectual at best. I, I was surprised, but I certainly wasn't hurt. But in my surprise at that point, I recollect actually shouting, not shouting, but saying something quite loudly along the lines of, oh, that's assault. I was taken aback. She only struck me the once, and then she's put her, her hand back in her lap. She's now sitting on the stretcher, because I've lifted her legs up while this is occurring. This has all happened at once. So I've lifted her legs up. She's struck me across the face. She's still holding on to my right hand with her left hand, and then she puts her other hand in her lap, and to protect myself as anything else, I've now put my left hand on top of her right hand, just gently, not with any force at all, and I've kept that there for probably the next 10 seconds, and during that time, the care staff, my partner and the RN have wrapped the patient up in a sheet, which was on the stretcher.
190. SB During that time, sorry, the care staff?
191. JL Yeah, and the RN and my partner, they've all assisted to, as I say, just put a sheet over the patient, put a couple of seatbelts on, put the side of the stretcher up, and then my, I've raised the stretcher up to its operating height, and we’ve gathered up belongings and we've exited the building. We've made our way to the ambulance….
Mr Emery determined, that the termination of employment was the appropriate penalty for the following reasons:
In determining whether termination of your employment is the appropriate disciplinary action to take against you, I have carefully considered all the evidence available to me in this matter and I have given serious consideration to the effect of termination and its likely impact on you and your family.
However, the QAS holds a unique position of trust and confidence within the community. Our paramedics are welcomed into the patient's home and their lives at some of the most vulnerable times the patient can experience.
Whilst I understand your desire to remain an Advanced Care Paramedic (ACP) with QAS and while I appreciate the difficulties you will face in securing alternative employment, your conduct whilst employed in the role of a paramedic with QAS was entirely inconsistent with the position our organisation, and its employees hold within the community.
While I have also considered alternative roles, including Patient Transport Officer and Emergency Medical Dispatcher, each of these roles also requires compliance with QAS policy, procedures and expectations.Consequently I no longer have the necessary trust or confidence in your ability to comply with the Code of Conduct for the Queensland Police Service, perform the duties expected of your role as an ACP nor do I have the confidence in your ability to act as a responsible healthcare professional in any role within the QAS.
While I appreciate the significance of such disciplinary action, I find that your conduct is entirely contrary to the values of the organisation and is fatal to the employment relationship between you and QAS. Accordingly, pursuant to section 18B(1) of the Act, I have determined to terminate your employment effective immediately.
…Mr Loveridge's submissions
Mr Loveridge submits that the dismissal was unfair in so far as it was harsh, unjust or unreasonable.
Mr Loveridge claims the dismissal was unjust, because he was not guilty of the misconduct on which the Respondent acted; unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the Respondent; and harsh, because of its consequences for the Applicant's personal and economic circumstances.[155]
[155] Applicant's closing submissions filed 22 December 2021, [1.18].
For the reasons referred to above, I have found that Mr Loveridge was guilty of misconduct and I do not consider the matter was decided on inferences that could not reasonably have been drawn.
Section 320(a) of the IR Act: Was Mr Loveridge notified of the reasons for his dismissal?
Mr Loveridge was notified of the reasons for his termination by correspondence, which was approved and signed by Mr Emery on 20 November 2020.
Section 320(b): Did the dismissal relate to operational requirements or Mr Loveridge's conduct, capacity or performance?
Mr Loveridge's dismissal related to his conduct. For the reasons set out above in these findings, I am satisfied that Mr Loveridge engaged in conduct that amounted to misconduct within the meaning of that term in s 18A of the AS Act.
Section 320(c): Had Mr Loveridge been warned about the conduct, capacity or performance; or was he given an opportunity to respond to the allegation about the conduct, capacity or performance?
Mr Loveridge had not been warned about his conduct, prior to his dismissal, in respect to the allegations.
The substantiated conduct is not consistent with Mr Loveridge's obligation pursuant to the standards under the Code of Conduct, nor with the role which Mr Loveridge performed within the QAS. Given these matters, I do not find that the failure to warn Mr Loveridge about his conduct can or should materially contribute to a finding that his dismissal was unfair.
Further, Mr Loveridge was given an opportunity to respond to the conduct during the course of the show cause process. In this regard, he was provided with several opportunities to respond to the show cause notice both in writing and in person and the show cause on penalty notice. Mr Loveridge's responses were considered and referred to in the decision on findings and the decision to terminate Mr Loveridge's employment made by Mr Emery. Consequently, Mr Loveridge was given an opportunity to respond to the allegations and the proposed disciplinary action.
Section 320(d): any other matters the commission considers relevant
Was Mr Loveridge's dismissal proportionate to the conduct?
Mr Loveridge submits that because of the impact that the termination of employment will have on him, that his termination of employment was a harsh outcome.
Mr Emery, in his letter of termination, as noted above, addressed the reasons why he considered termination of employment to be appropriate.
In considering the issue of proportionality of penalty to the conduct, I have also had regard to the impact the decision to terminate Mr Loveridge's employment will have on him. In his favour, he is an accomplished senior employee of long-standing service with no prior disciplinary matters. There is no doubt that the termination of his employment will have an impact on him. Mr Loveridge gave evidence that the dismissal has affected his health and his finances. He also gave evidence that he had found it difficult to find meaningful alternative employment since the dismissal.
However, equally, and against his favour, an employee such as Mr Loveridge is expected to conduct themselves in a manner that is consistent with a standard of conduct contained in the Code of Conduct.
Ultimately, I conclude, that Mr Loveridge, as a very senior and long-term employee with the QAS, did know that the conduct in which he engaged in with respect to the allegations was not of a standard expected of a senior paramedic. I have formed the view, having regard to evidence that Mr Loveridge's conduct on 11 June 2019 radically deviated from the expected conduct of a senior paramedic.
Relevantly, I am satisfied that the substantiated conduct is of such a nature that it was a completely inappropriate reaction to the situation, that it put the safety of a patient at actual risk of harm, that it did not adhere to the standards of the QAS and that it presented as a reputational risk to the QAS.
In my view, having regard to his position and the trust and confidence placed in him by the QAS, Mr Loveridge's dismissal was proportionate to the conduct in which he engaged in respect of the substantiated allegations.
For this reason, I have concluded that Mr Loveridge's dismissal was not disproportionate to the substantiated conduct.
Conclusion
The ultimate issue for determination in this proceeding was whether Mr Loveridge's dismissal from his position was harsh, unjust or unreasonable.
Mr Loveridge was dismissed because the QAS was reasonably satisfied that, in respect of the allegation, he had engaged in conduct, which amounted to misconduct within the meaning of s 18A of the AS Act.
I am satisfied that on the evidence before this Commission, Mr Loveridge engaged in the conduct the subject of the allegation. For this reason, the dismissal was substantively fair.
As referred to above, Mr Loveridge's dismissal was procedurally fair.
Mr Loveridge did not meet the relevant requirements imposed upon him as an employee by a standard of conduct of the Code of Conduct in respect of the allegation and consequently contravened that standard. The substantiated conduct is serious and I am satisfied that it has ended the QAS's trust and confidence in Mr Loveridge as an employee of the QAS. For these reasons, Mr Loveridge's dismissal was proportionate to the conduct.
For the reasons referred to herein, and having regard to the matters referred to in s 320 of the IR Act, I have formed the view that Mr Loveridge's dismissal was not unfair within the meaning of s 316 of the IR Act.
Mr Loveridge's application for reinstatement is dismissed.
Accordingly, I make the following order:[156]
[156] By order issued on 21 July 2023.
1. The application for reinstatement is dismissed.
2. If the Respondent intends to apply for any costs order, the application for costs is to be filed and served within 28 days.
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