The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service

Case [2020] QIRC 67

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 067

PARTIES:

The Australian Workers' Union of Employees, Queensland
(Applicant)

v

Gold Coast Hospital and Health Service
(Respondent)

CASE NO:

 TD/2019/11

PROCEEDING:

 Application for reinstatement

DELIVERED ON:

 8 May 2020

HEARING DATES:

DATES OF WRITTEN SUBMISSIONS:

18 and 19 November 2019

Respondent's submissions: 24 January 2020
Applicant's submissions: 21 February 2020
Respondent's submissions in reply: 28 February 2020

MEMBER

HEARD AT:

Merrell DP

Brisbane

ORDER:

The application is dismissed

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Applicant's member employed as Protective Services Officer -discipline procedure under Public Service Act 2008 - disciplinary finding that Applicant's member used inappropriate force towards patients and made inappropriate comments - disciplinary decision of dismissal - whether dismissal harsh, unjust or unreasonable - dismissal not harsh, unjust or unreasonable - application dismissed

LEGISLATION:

CASES:

Hospital and Health Boards Act 2011, pt 9

Industrial Relations Act 2016, s 316 and s 320

Public Service Act 2008, s 187 and s 188

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

(Bruce) Campbell Gordon v Department of Corrective Services [2009] QIRC 18

Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410

Aird v Department of Community Safety, Queensland Ambulance Service [2013] QIRC 185

Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

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

Mathieu v Higgins [2008] QSC 209

Manly Council v Byrne [2004] NSWCA 123

Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

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 of Education, Training and the Arts [2009] QIRC 11

Scott v La Trobe Regional Hospital [2019] FWC 5680

APPEARANCES:

Mr J. Harding of The Australian Workers' Union of Employees, Queensland.

Mr G. Brown and Ms W. Currey of the Gold Coast Hospital and Health Service.

Reasons for Decision

Introduction

  1. Mr Roger (Eric) Lam commenced employment with the Gold Coast Hospital and Health Service ('the Health Service') on 1 October 2013.[1]  On 24 February 2014, Mr Lam was employed as a Protective Services Officer ('PSO') within the Health Service[2] and worked at the Gold Coast University Hospital ('the Hospital').

    [1] Exhibit 1, para. 1.

    [2] Ibid.

  2. In September 2018, the Health Service advised Mr Lam that he may be liable to be disciplined under the Public Service Act 2008 ('the PS Act') in that he may be guilty of misconduct or that he may have contravened, without reasonable excuse, a standard of conduct applying under the Code of Conduct for the Queensland Public Service ('the Code'). The advice concerned four allegations. The first three allegations were that Mr Lam used inappropriate force…

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The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 67
Case
[2020] QIRC 67
Decision Date

CaseChat Overview and Summary

In the matter of the Australian Workers' Union of Employees, Queensland and Mr Lam, an application for reinstatement was brought before the court. The dispute involved Mr Lam, a member of the union and a former employee of the Gold Coast Hospital and Health Service, who was employed as a Protective Services Officer (PSO). The central issue was whether Mr Lam's dismissal from his position was harsh, unjust, or unreasonable, as per the Public Service Act 2008. The court was tasked with determining the validity of the disciplinary action taken against Mr Lam, which included allegations of using inappropriate force towards patients and making inappropriate comments during emergency responses.

The primary legal issue revolved around the assessment of whether the disciplinary decision to dismiss Mr Lam was justified. This required the court to evaluate the nature of the misconduct, the evidence presented, and whether the dismissal was proportionate and reasonable under the relevant statutory provisions. The court had to consider whether Mr Lam's actions warranted dismissal, given the severity and frequency of the alleged misconduct, and whether there were any mitigating factors that should be taken into account.

After reviewing the evidence, including audio and video footage from body-worn cameras and testimonies, the court concluded that Mr Lam did indeed engage in the misconduct as alleged. The court found that the use of inappropriate force and the making of inappropriate comments were substantiated by the evidence. Furthermore, the court determined that Mr Lam's dismissal was not harsh, unjust, or unreasonable, taking into account the seriousness of the misconduct and the expectations of conduct for a PSO. Consequently, the application for reinstatement was dismissed.

The court's decision was based on a thorough analysis of the evidence and the applicable legal standards. The dismissal was upheld as it was found to be a proportionate response to the misconduct demonstrated by Mr Lam, thereby affirming the Health Service's disciplinary action.

Orders

Orders of the court

The application is dismissed

Background

Background to the litigation

For the reason that follow, I find that:·Mr Lam did engage in the misconduct the subject of first three allegations; and·Mr Lam's dismissal was not harsh, unjust or unreasonable having regard to s 320 of the Act. BackgroundThe responsibilities of PSOs The responsibilities of PSOs employed by the Health Service include:·providing internal security services, including routine and regular patrols within the Health Service's facilities;·assisting with emergency responses as a member of the Incident Response Team as directed;·actively contributing to the de-escalation of patient responses, behaviour and incidents by utilising endorsed evidence-based contemporary practices;·following defined service quality standards, occupational health and safety policies and procedures, relating to the work being undertaken, in order to ensure high quality, safe services and workplaces; and·taking reasonable care for their own health and safety and taking reasonable care to ensure their acts or omissions do not adversely affect the health and safety of others.[3][3] Exhibit 8, exhibit GB-1, page 2. The evidence before the Commission included audio and video footage from body worn cameras of various PSOs. It is obvious, from that evidence, that in performing their duties, the PSOs employed at the Hospital have to deal with patients who, for a variety of reasons, do not follow the directions of Health Service employees, become verbally argumentative and in some cases act in a physically aggressive manner. It is equally obvious that, in some of those circumstances, some patients require direct, physical restraint by PSOs. The investigation of the allegations and the disciplinary process In February and March 2018, concerns were identified by the Health Service about the amount of force used by Mr Lam on three occasions when the Security Services Team was called to respond to code black calls at the Hospital.[4] A code black call is one made by a staff member when anyone is in a threatening situation and it is believed that a person's safety is at risk.[5] In April 2018, a complaint was made that Mr Lam had made inappropriate comments during a code black when he allegedly said words to the effect that he wanted to slap a patient.[6] The matters concerning the amount of force used by Mr Lam were referred to the Crime and Corruption Commission ('CCC') which then advised that the Health Service could investigate the allegations and that further supervision of the CCC was unnecessary.[7] [4] Exhibit 8, para. 12.[5] Exhibit 8, para. 14.[6] Exhibit 8, para. 16.[7] Exhibit 8, para. 22. Following that, Ms Donna Scovell of Ashdale Workplace Solutions was appointed, under pt 9 of the Hospital and Health Boards Act 2011, to undertake an investigation of the four allegations made against Mr Lam.[8] [8] Exhibit 8, para. 28. The four allegations investigated by Ms Scovell were:·on 8 February 2018, at approximately 10.22 pm, Mr Lam allegedly used inappropriate force towards Patient UR 628423 during a 'code black' emergency response (Security Incident SIS028064). It was alleged that when physical force was used to return the patient to the bed, Mr Lam put his fingers under each side of the patient's jaw and held the patient in that manner;[9] ·on 18 March 2018, at approximately 2.45 pm, Mr Lam allegedly used inappropriate force towards Patient UR1170587 during a 'code black' emergency response (Security Incident SIS029567). It was alleged that when the patient was being escorted in arm restraints, Mr Lam used pain compliance restraints;[10]·on 21 March 2018, at approximately 11.05 pm, Mr Lam allegedly used inappropriate force towards Patient UR 1159140 during a 'code black' emergency response (Security Incident SIS029709). It was alleged that when the patient resisted being escorted out of the Hospital, Mr Lam applied a pain compliance technique;[11] and·on 7 April 2018, at approximately 11.20 pm, Mr Lam allegedly made inappropriate comments regarding Patient UR 112361, to a Ms Stephanie Cognet, Clinical Team Coordinator, during a 'code black' emergency response (Security Incident SIS030341). It was alleged that Mr Lam said words to the effect of: 'I want to slap him around' and/or 'Can I slap him'.[12] [9] Exhibit 8, exhibit GB-2, page 4 of 54.[10] Exhibit 8, exhibit GB-2, page 4 of 54.[11] Exhibit 8, exhibit GB-2, pages 4 and 5 of 54.[12] Exhibit 8, exhibit GB-2, page 5 of 54.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Because of this finding, it is unnecessary for me to consider the evidence surrounding the disciplinary declaration made in respect of Mr Lam following his dismissal.Conclusion The ultimate issue for determination in this proceeding was whether Mr Lam's dismissal from his position as PSO within the Health Service was harsh, unjust or unreasonable. In my view, the evidence establishes that Mr Lam engaged in the misconduct the subject of Allegations one, two and three. For the reasons given earlier in this decision, having regard to the matters in s 320 of the Act, I am not satisfied that Mr Lam's dismissal was harsh, unjust or unreasonable. Mr Lam's application for reinstatement is therefore dismissed.

Ratio Decidendi

Legal Principle Established

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