Turner v Queensland Ambulance Service - [2022] QIRC 471

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Turner v Queensland Ambulance Service [2022] QIRC 471
PARTIES:	Turner, Peter (Appellant) v Queensland Ambulance Service (Respondent)
CASE NO:	PSA/2022/374
PROCEEDING:	Public Service Appeal – Disciplinary Decision
DELIVERED ON:	2 December 2022
MEMBER:	Knight IC
HEARD AT:	On the papers
ORDER:	The decision appealed against is confirmed.
CATCHWORDS:	PUBLIC SERVICE – DUTIES AND OFFENCES IN RELATION TO OFFICE – appeal against a decision pursuant to s 197 of the Public Service Act 2008 (Qld) – where two allegations substantiated – where disciplinary action imposed reducing appellant's pay code by two increments – whether penalty fair and reasonable – penalty confirmed
LEGISLATION AND INSTRUMENTS:	Ambulance Service Act 1991 (Qld) ss 18A, 18B Code of Conduct for the Queensland Public Service cl 3.1 Industrial Relations Act 2016 (Qld) ss 562B Public Service Act 2008 (Qld) s 197Queensland Ambulance Service Certified Agreement 2017 sch 4 Queensland Ambulance Service Discipline Human Resources Procedure cl 3.4.1Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) s 300
CASES:	Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Manttan v State of Queensland (Department of Education) [2022] QIRC 238 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Nesbit v Metro North Hospital and Health Service [2021] ICQ 005 Police Service Board v Morris (1985) 156 CLR 397 Rizkallah and Australian Postal Corporation [1991] AATA 611

Reasons for Decision

Mr Peter Turner is employed by the State of Queensland as an Advanced Care Paramedic through Queensland Ambulance Service ('QAS'). Mr Turner has over 16 years' service with QAS.
In a decision letter dated 21 February 2022, A/Assistant Commissioner Matthew Green informed Mr Turner that, following a show cause process, he had decided to impose the following disciplinary action on Mr Turner:

(a) a forfeiture of two increments from Pay code AF31/3 ($94,521 per annum) to AF31/1 ($90,686 per annum);

(b) that Mr Turner remain on Pay code AF31/1 for six months after which, subject to his satisfactory performance, he may progress to remuneration level AF31/2 ($92,617 per annum); and

(c) that Mr Turner remain on Pay code AF31/2 for six months after which, subject to his satisfactory performance, he may progress to remuneration level AF31/3;

('the penalty').

Mr Turner was also required to complete Code of Conduct and Ethical Decision Making training and meet with his supervisor to discuss his understanding of information privacy and the training.
The penalty was intended to take effect from 15 March 2022. However, cl 3.4.1(b) of the QAS Discipline Human Resources Procedure provides that where an appeal had been made against a disciplinary penalty (other than termination of employment) it cannot take effect until the appeal has been determined.
By appeal notice filed 14 March 2022, Mr Turner appeals the penalty under ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PS Act'). [1] Such an appeal proceeds under ch 11 pt 6 div 4…

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: [2022] QIRC 471
Decision Date: 2 December 2022

CaseChat Overview and Summary

The case of Turner v Queensland Ambulance Service involves an appeal by Mr. Turner against a disciplinary decision made by the Queensland Ambulance Service (QAS) under the Ambulance Service Act 1991 (Qld). Mr. Turner was found to have contravened the Code of Conduct for the Queensland Public Service by capturing and publishing an image containing confidential information on his personal mobile phone and by using a mobile phone while operating a QAS vehicle in 'D' mode. As a result, Mr. Turner's pay code was reduced by two increments, and he was required to complete additional training. The central issue before the court was whether the penalty imposed on Mr. Turner was fair and reasonable under the Act.

The court considered the principles of natural justice and the relevant statutory provisions, including sections 18A and 18B of the Ambulance Service Act. Section 18A allows for disciplinary action if the chief executive is reasonably satisfied that a service officer has contravened a provision of the Act or an obligation under a code of conduct. Section 18B outlines the types of disciplinary actions that may be taken, including reduction of remuneration level and forfeiture of increments. The court noted that Mr. Turner's actions constituted a serious breach of trust and responsibility, particularly given his seniority and extensive service with QAS.

The court found that the penalty imposed was reasonable and appropriate, taking into account the seriousness of the breaches and Mr. Turner's response to the proposed disciplinary action. The decision-maker had carefully considered the evidence and Mr. Turner's response, and the penalty was proportionate to the misconduct. The court upheld the disciplinary action, confirming the decision made by the QAS.

The final orders of the court confirmed the disciplinary decision made by the Queensland Ambulance Service, including the reduction of Mr. Turner's pay code by two increments and the requirement to complete additional training.

Orders

Orders of the court

The decision appealed against is confirmed.

Background

Background to the litigation

My reasons follow.Background On 29 November 2021, Mr Turner was invited to show cause why a disciplinary finding should not be made against him in relation to the following allegations:Allegation OneOn 12 May 2021, you inappropriately captured an image containing confidential information on your personal mobile phone and published this on social media.Allegation TwoOn May 12 2021 [sic], you used a mobile phone whilst operating a QAS vehicle in 'D' [drive] mode. In his response dated 13 December 2021, Mr Turner admitted to both allegations. In correspondence dated 4 January 2022, Mr Turner was advised that it had been found that he had failed to comply with standard 3.1(e) of the Code of Conduct for the Queensland Public Service ('Code of Conduct') in respect of Allegation One, and standard 3.1(c) in respect of Allegation Two. Consequently, the decision-maker determined the allegations were substantiated and there were grounds to discipline Mr Turner under s 18A(1)(g)(ii) of the Ambulance Service Act 1991 (Qld) ('the ASA').Show Cause Process Within the 4 January 2022 correspondence, the decision-maker advised he was giving consideration to appropriate disciplinary action as follows:Proposed disciplinary actionIn relation to the imposition of a disciplinary action in relation to Allegation [One and Two], I am currently giving serious consideration to the disciplinary action of:1. Forfeiture of two increments from Pay code AF31/3 ($94,521 per annum) to AF31/1 ($90,686 per annum); and2. That you remain on Pay code AF31/1 ($90,686 per annum) for 6 months after which, subject to your satisfactory performance, you may progress to remuneration level AF31/2 ($92,617 per annum); and3. That you remain on Pay code AF31/2 ($92,617 per annum) for 6 months after which, subject to your satisfactory performance, you may progress to remuneration level AF31/3 ($94,521 per annum).Further to this, I am giving serious consideration to the administrative action of training where you would be required to complete the Information Privacy Code of Conduct and Public Sector Ethics training via the QASCLO system and meet with your supervisor to discuss your knowledge and understanding of these requirements.In accordance with the principles of natural justice, no final determination of the disciplinary action to be imposed has been made, or will be made, until you have had the opportunity to respond. Mr Turner was invited to respond to the proposed penalty, which he did on 24 January 2022.Mr Turner's Response Within his response Mr Turner: Mr Turner concluded his response by noting he was proud of his 16 years of service with QAS. Moreover, that he had not been subject to any previous disciplinary action.The Decision The decision-letter relevantly provides:My decision in relation to the disciplinary actionI have considered all the information available to me in determining the appropriate action to take in this matter, including your response, however all information may not be specifically mentioned in my decision.Your actions relating to this matter raised serious concerns. As a QAS employee you occupy a unique position of trust and responsibility within the community which you failed to achieve in this instance. You chose to operate a vehicle in an unsafe manner, whilst entertaining your own personal agendas rather than the interests of the QAS and your patient. These actions simply did not project the desired image of a QAS employee with over 16 years' experience and considered a senior member of the service.Therefore, in accordance with section 18B of the Ambulance Service Act, I have decided to impose the disciplinary action of:1.A forfeiture of two increment from Pay code AF31/3 ($94,521 per annum) to AF31/1 ($90,686 per annum);2.That you remain on Pay code AF31/1 ($90,686 per annum) for 6 months after which, subject to your satisfactory performance, you may progress to remuneration level AF31/2 ($92,617 per annum); and3.That you remain on Pay code AF31/2 ($92,617 per annum) for 6 months after which, subject to your satisfactory performance, you may progress to remuneration level AF31/3($94,521 per annum).I understand that you have recently completed A3QASIPT19 – QAS Information Privacy Training and A3QASIPTR21 – QAS Information Privacy Training – Refresher on 2 and 5 January 2022 respectively. Due to this I will not request you to complete the Privacy training again, however you are required to complete Code of Conduct and Ethical Decision Making training via the Learning Management System (LMS) and meet with your supervisor to discuss your knowledge and understanding of these requirements.I believe this action is reasonable and appropriate having considered all the evidence and your response.Relevant Principles

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The decision-letter relevantly provides:My decision in relation to the disciplinary actionI have considered all the information available to me in determining the appropriate action to take in this matter, including your response, however all information may not be specifically mentioned in my decision.Your actions relating to this matter raised serious concerns. As a QAS employee you occupy a unique position of trust and responsibility within the community which you failed to achieve in this instance. You chose to operate a vehicle in an unsafe manner, whilst entertaining your own personal agendas rather than the interests of the QAS and your patient. These actions simply did not project the desired image of a QAS employee with over 16 years' experience and considered a senior member of the service.Therefore, in accordance with section 18B of the Ambulance Service Act, I have decided to impose the disciplinary action of:1.A forfeiture of two increment from Pay code AF31/3 ($94,521 per annum) to AF31/1 ($90,686 per annum);2.That you remain on Pay code AF31/1 ($90,686 per annum) for 6 months after which, subject to your satisfactory performance, you may progress to remuneration level AF31/2 ($92,617 per annum); and3.That you remain on Pay code AF31/2 ($92,617 per annum) for 6 months after which, subject to your satisfactory performance, you may progress to remuneration level AF31/3($94,521 per annum).I understand that you have recently completed A3QASIPT19 – QAS Information Privacy Training and A3QASIPTR21 – QAS Information Privacy Training – Refresher on 2 and 5 January 2022 respectively. Due to this I will not request you to complete the Privacy training again, however you are required to complete Code of Conduct and Ethical Decision Making training via the Learning Management System (LMS) and meet with your supervisor to discuss your knowledge and understanding of these requirements.I believe this action is reasonable and appropriate having considered all the evidence and your response.Relevant Principles The ASA relevantly provides:18A Grounds for discipline(1)The chief executive may discipline a service officer if the chief executive is reasonably satisfied the officer has—…(g)contravened, without reasonable excuse, a provision of this Act or an obligation imposed on the person under—…(ii)a code of conduct—(A)approved under the Public Sector Ethics Act 1994; or…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…(3)A monetary penalty can not be more than the total of 2 of the officer’s periodic remuneration payments.…(5)An order under subsection (1) is binding on anyone affected by it.Note—See the following provisions in relation to appeals against a decision of the chief executive to take disciplinary action against a person—(a)the Public Service Act 2008, sections 23 and 194;(b)the Public Service Regulation 2008, sections 5 and 7 and schedule 1, item 4.

Ratio Decidendi

Legal Principle Established

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