Kaitara v State of Queensland

• [1] Mr John Kaitara ('the Appellant') is an enrolled nurse and works in the Medical Assessment Unit of the Cairns and Hinterland Hospital and Health Service ('CHHHS'). On 9 September 2024, Mr Kaitara was suspended from duty on normal remuneration in relation to an allegation that he had used excessive or inappropriate force on a patient on 6 September 2024.

• [2] Following a show cause process, Mr Kaitara was informed that one allegation against him has been substantiated, and that he would be disciplined. He has been asked to show cause as to why his employment should not be terminated.

• [3] The substantiated allegation ('the Allegation') is:

During your rostered shift on 6 September 2024, you used inappropriate force against patient UR#362439 (the patient) in the Medical Assessment Unit (MAU) when medication was being administered to the patient...

• [4] After setting out a consideration of Mr Kaitara's response and her reasons for decision, the decision-maker informs Mr Kaitara that she has determined that pursuant to s 91(1)(h) of the Public Sector Act 2022 (Qld) ('PS Act'), he has contravened, without reasonable cause, a relevant standard of conduct in a way sufficiently serious to warrant disciplinary action. Specifically, the decision-maker says that Mr Kaitara has not adhered to the policies, organisational values and organisational documents of his employer.[1]

• [5] While administering oral medication to a patient, Mr Kaitara employed what he refers to as an 'OVP[2] compliance technique to the patient's infra-orbital area to have the patient release a paper cup from his mouth'.[3]

• [6] Mr Kaitara also admits to holding the patient's wrists with his right hand and elevating the patient's arms above their head to lessen their strength and minimise the angle of leverage to avoid strikes by the patient. However, Mr Kaitara says that he used the minimal degree of force necessary to obtain compliance and that once compliance was obtained, he ceased the pain compliance practice.[4]

• [7] The decision-maker informs Mr Kaitara that she is:[5]

... satisfied the force you applied to the patient during the physical restraint constitutes an inappropriate use of force as said actions were not warranted, not directed and not required in the circumstances: Said use of inappropriate force was a direct non-compliance with the Health Service's procedures regarding utilising least restrictive practice and de-escalation techniques and a direct departure· from the requirements of your position as an Enrolled Nurse. Furthermore, you have not provided reasonable excuse as to why you did not comply with such procedure and did not follow the direction of Ms Hope as the Registered Nurse present. I consider that the force you used placed significant and unnecessary risk to the safety and wellbeing of the patient.

• [8] Mr Kaitara's Appeal Notice contains detailed reasons for his appeal. These reasons for appeal will be addressed below, however, in summary they are that:

1. The decision maker failed to properly investigate the matter....

1. Further, or in the alternative, the decision maker failed to provide Mr Kaitara with procedural fairness by failing to provide him an opportunity to respond to relevant witness evidence which the decision maker may have relied upon in reaching its decision.

1. The decision maker took into account irrelevant considerations...

1. The decision-maker made/considered unreasonable or weak inferences (i.e. unreasonable or unsupported conclusions in the absence of other evidence)...

1. The decision maker applied clinical judgment inflexibly to Mr Kaitara's conduct resulting in a failure to properly exercise their discretion...

1. The decision-maker applied an unreasonable standard or expectation in relation to Mr Kaitara managing the physical restraint by failing to take into account the sudden nature of the incident.

1. The Health Service has not complied with the requirements of the Positive Performance Management Directive 02/24 in managing Mr Kaitara's performance in relation to this allegation. Mr Kaitara has not been spoken to regarding his version of events at all prior to the decision.

1. The decision maker failed to appropriately apply the test found in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 ('the Briginshaw Test') in weighing up the evidence and reaching a decision about Mr Kaitara's conduct.

• [9] The Respondent has filed a response in which it argues that the decision was fair and reasonable and provides a response to Mr Kaitara's reasons for appeal. Mr Kaitara's union wrote to the Industrial Registry on 30 September 2025 to state that it had no further submissions in reply to the submissions of the Respondent.

• [10] The question before me is whether the discipline finding decision is fair and reasonable.[6] I have considered each of the matters addressed in Mr Kaitara's Appeal Notice, considering the relevant responses of the Respondent.

• [11] For the reasons given below, the decision appealed against is confirmed.

Reason for Appeal: The decision-maker failed to properly investigate the matter

• [12] Mr Kaitara submits that the decision-maker failed to interview relevant witnesses.

• [13] Mr Kaitara has not named any specific witnesses he says should have been interviewed. I understand Mr Kaitara's submission to be that witnesses should have been interviewed rather than being asked to provide statements.

• [14] The Respondent submits that statements were gathered from selected staff who were present during the incident: Ms Hope, Registered Nurse in charge of the shift and Ms Eustace, Assistant in Nursing. Mr Kaitara was given an opportunity to provide a statement in response to the concern that he had used inappropriate or excessive force with a patient.[8]

• [15] In the First Show Cause Notice, with respect to the lack of reporting from the patient, Ms Winstanley states:

At the time of the incident the patient lacked capacity to make their own report, and it is doubtful due to the medical capacity of the patient that they would have any recollection of the incident, nor be able to identify you.

• [16] There is no requirement that interviews be undertaken before commencing a discipline process. Statements were gathered and Mr Kaitara was given an opportunity to respond to the initial 'Please Explain' and then later to a Show Cause Notice.

• [17] I am satisfied that the decision-maker was provided with the statements of relevant witnesses prior to determining to commence the discipline process. I am also satisfied that Mr Kaitara had all relevant statements when preparing his response.

• [18] That interviews were not undertaken with witnesses who had already provided statements does not render the decision not fair or reasonable.

Failure to seek the opinion of an expert employee[9]

• [19] Mr Kaitara submits that the decision-maker failed to seek the opinion of an expert employee, for example, a senior nurse with experience in aggressive patient behaviour and occupational violence, or a medical officer, in relation to Mr Kaitara's actions.

• [20] The Respondent says that Mr Jared Brose (Nursing Director Professional Practice and Clinical Standards at the relevant time) was briefed with the Please Explain Response and copies of the statements of the staff present during the incident and provided a clinical review of the incident.[10]

• [21] Mr Brose gave a clinical opinion arising from his clinical review of the incident that the restraint was not required and was therefore inappropriate. Mr Kaitara was provided with a copy of Mr Brose's clinical review as an attachment to the Show Cause Notice.

• [22] The Respondent submits that it was reasonable for Ms Winstanley to accept Mr Brose's clinical review of the incident that the restraint was not required and therefore inappropriate, in circumstances where this finding was consistent with Ms Hope's evidence that Mr Kaitara had used inappropriate physical force against a patient.

• [23] I am satisfied that an appropriately qualified person undertook a clinical review of the incident.

**_Failure to interview witnesses with regard to set terms of reference that would illuminate the course of events and facts for comparative or corroborative benefit

Failure to comply with the requirements of Directive 01/24: Workplace Investigations to objectively managed the incident[11]

• [24] The Respondent rejects any submission that it failed to properly investigate the matter prior to the decision-maker deciding to commence the disciplinary process. The Respondent says that Directive 05/23: Discipline ('the Discipline Directive') does not require there to be an investigation process in accordance with Directive 01/24: Workplace Investigations ('the Workplace Investigations Directive') prior to a disciplinary process being commenced or that any witness statements be obtained with regard to some set terms of reference.

• [25] The Appellant has not provided any particulars in support of his submission that witnesses should have been interviewed according to set terms of reference.

• [26] I am unable to identify a failure to comply with the Directive. Clause 5.3 of the Workplace Investigations Directive recognises that there will be occasions where less formal management enquiries by an entity may be sufficient to determine the relevant facts, if a complaint or allegation is likely to be substantiated or not substantiated and the appropriate action to be taken, including whether a workplace investigation should commence. It seems to me that the decision-maker was satisfied that the Please Explain Response and statements of the staff present during the incident and the clinical review were sufficient to determine whether to commence a discipline process.

• [27] Having not determined to instigate a workplace investigation, it was not necessary for the decision-maker to comply with the Workplace Investigations Directive.

Failure to provide procedural fairness and an opportunity to respond to relevant witness evidence[12]

• [28] Mr Kaitara says that the decision-maker denied him procedural fairness by virtue of her failure to provide him with an opportunity to respond to relevant witness evidence which the decision-maker may have relied upon in making the decision.

• [29] The Respondent rejects this submission and says that Mr Kaitara was provided with copies of all the evidence the decision-maker proposed to consider when making the decision and that he was provided with an opportunity to respond. The Respondent says this evidence included the written accounts from witnesses and Mr Brose's clinical opinion. The Respondent says that it is clear from the decision that Ms Winstanley carefully considered Mr Kaitara's response when making the decision.[13]

• [30] I have reviewed the Notice to Show Cause. Mr Kaitara was provided with the incident report and the written statements of the relevant witnesses.

• [31] Mr Kaitara has not identified the evidence which he says he was not presented with. I am unable to identify any witness evidence the decision-maker relied upon which has not been provided to Mr Kaitara.

Conclusion: Did the decision-maker fail to properly investigate the matter?

• [32] I am satisfied that the decision-maker took the necessary steps to inform herself as to whether it was appropriate to commence a discipline process. I am satisfied that Ms Winstanley sought out relevant information, gave Mr Kaitara an opportunity to respond to the concerns, requested a clinical review of the incident, provided Mr Kaitara with the incident report, statements of relevant witnesses, and provided him an opportunity to show cause why discipline findings should not be made. I am unable to identify any failure of the decision-maker to properly investigate the matter.

Reason for appeal: The decision-maker took into account irrelevant considerations

• [33] Mr Kaitara says that the decision-maker took into account an irrelevant consideration by finding that Mr Kaitara should not have intervened in the incident and failed to act as directed by the supervising Registered Nurse, in circumstances where the decision-maker did not appear to have evidence that would support this finding.[14]

• [34] The Respondent submits that the decision-maker did not find that Mr Kaitara should not have intervened. Rather, the Respondent says that Ms Winstanley concluded that Mr Kaitara's use of force on the patient was inappropriate because the supervising Registered Nurse had not directed him to use that force and there was not an imminent risk of harm to the patient or others warranting such a use of force.[15]

• [35] Mr Kaitara says that the decision-maker's findings about matters extraneous to the Allegation as framed by the CHHHS, including a finding that Mr Kaitara exercised professional discretion to cause intentional pain to the patient or did not, in fact, de-escalate the patient during the incident through his actions.[16]

• [36] The Respondent submits that Ms Winstanley did not make findings about matters extraneous to the Allegation. The Respondent says that Mr Kaitara's submission that the decision-maker had found he had exercised a professional discretion to cause intentional pain to the patient is misconceived. The Respondent says Ms Winstanley found that the physical restraint Mr Kaitara used was 'intended to cause the patient discomfort'. Ms Winstanley made this finding on the basis of Mr Kaitara's description of his use of force as 'pain compliance techniques' and 'pressure point compliance'. Mr Kaitara's response stated that he used the technique to achieve the patient's compliance by applying pressure to affect the infraorbital nerve.[17]

• [37] The Respondent says that those findings were relevant to Ms Winstanley's consideration of whether Mr Kaitara's conduct was in breach of the CHHHS Procedure: Least Restrictive Practices to Protect Patients from Harm (Restraint of Adult Inpatients (>18 Years) ('the Restraint Procedure'), the seriousness of his conduct and whether grounds for discipline exist.[18]

• [38] Mr Kaitara says that the decision-maker gave preference to the evidence of witnesses, though no such evidence was put to the Appellant, without providing any adequate basis for preferring any witness evidence.[19]

• [39] The Respondent says that all evidence of other witnesses was put to Mr Kaitara with his Show Cause Notice and that Ms Winstanley provided an explanation as to why she preferred the evidence of other witnesses over Mr Kaitara's.[20]

• [40] The Respondent submits that it was reasonably open to Ms Winstanley to prefer the evidence of Ms Hope on the basis of her seniority and clinical knowledge but also in circumstances where there was no evidence before Ms Winstanley that Ms Hope had any reason to provide an inaccurate account of what occurred. The Respondent says that Ms Hope provided multiple consistent, detailed accounts including her contemporaneous statement, the report to Ms DeKlerk and the Riskman Report.[21]

• [41] On that basis, the Respondent also says that it was reasonable for Ms Winstanley to accept that Mr Kaitara used inappropriate language during the incident, specifically by saying words to the effect of 'this is bullshit'. The Respondent submits that this is reasonable in circumstances where Mr Kaitara admits that he used this language, and Ms Hope's evidence is that Mr Kaitara also said words to the effect of 'fuck this guy anyway' in reference to the patient.

Conclusion: Did the decision-maker take irrelevant considerations into account?

• [42] Mr Kaitara's own response states that he chose to apply a pain compliance technique on the patient. Ms Winstanley's decision did not need to consider whether Mr Kaitara had used force or a pain compliance technique. What Ms Winstanley was required to do, was determine whether Mr Kaitara's conduct was warranted or appropriate. She did this by having reference to the Restraint Procedure and the expectations of Mr Kaitara in his role. If the conduct had complied with the Restraint Procedure and had been done at the direction of a Registered Nurse, Mr Kaitara may have had a reasonable excuse for the conduct and it would not have been deemed inappropriate.

• [43] Mr Kaitara admits to saying words to the effect of 'this is bullshit'. Setting aside any finding that Mr Kaitara also said 'fuck this guy', I note that Ms Winstanley found that Mr Kaitara's admission regarding the inappropriate language he used 'demonstrates a disposition and expression of annoyance from [him] regarding the patient during the incident'.[22] Ms Winstanley found that Mr Kaitara's comment reinforced that he was frustrated with the patient and that this was not an acceptable reason to not apply de-escalation techniques.

• [44] I have considered Mr Kaitara's submissions during the show cause process that he believed the patient presented a significant risk of physical harm and/or assault to himself and other staff members present. I have also considered Mr Kaitara's initial response to the 'Please Explain' email in which he says that his use of the pain compliance technique was justified because of the risk of the patient hitting him with a plaster cast, that the technique circumvented placing Mr Kaitara's fingers near his mouth and getting them bitten. Mr Kaitara does not claim that Ms Hope directed him to use the pain compliance technique.

• [45] The available evidence indicates that following the incident, security personnel attended to assist with the administration of an injection. It appears that there were other options available in circumstances where the patient was being non-compliant. Ms Eustace's evidence was that Mr Kaitara told her to put the tablet in the patient's mouth while he held the patient's arms. This is inconsistent with a concern that it was unsafe for anyone to put their fingers near the patient's mouth. In any case, it is unclear to me that the only available option to Mr Kaitara was the application of the pain compliance technique in circumstances where deescalation was not working.

• [46] It was open to the decision-maker to find that Mr Kaitara had applied the pain compliance technique in circumstances where it was not warranted and did not reflect the Restraint Procedure. Based on Ms Hope's statement and contemporaneous reporting, it was open to Ms Winstanley to accept that Ms Hope did not direct Mr Kaitara to use the technique and in fact, directed him to stop using it.
• [47] I am satisfied that where Ms Winstanley states that she prefers the evidence of a witness over Mr Kaitara's response, she provides cogent reasons for doing so.

• [48] I find that Ms Winstanley did not take irrelevant considerations into account when making the decision.

Reason for Appeal: Decision-maker made or considered unreasonable or weak inferences that were unreasonable or unsupported conclusions in the absence of other supporting evidence

• [49] Mr Kaitara says that the unreasonable or weak inferences or conclusions reached by Ms Winstanley included those:[23]

1. In relation to the patient's state of mind, particularly the intent of the patient and whether the patient's behaviour presented an immediate threat to themselves or others.

1. In relation to Mr Kaitara, by not explicitly denying a particular aspect, or all aspects of the allegation, particularly his naming of 'pain compliance techniques' and making a subsequent assumption that his intention was to cause discomfort and pain to the patient.

1. In relation to Mr Kaitara's motives and subsequent portrayal of his actions in the decision.

1. In relation to Mr Kaitara not explicitly stating his position or technique in relation to de-escalation or investigating the matter to determine whether de-escalation was possible.

1. In relation to the witness accounts, which are described as inconsistent with respect of the alleged actions of Mr Kaitara as portrayed by the decision maker, but not in a way that is demonstrated or explicitly consistent as evidence.

1. In relation to Mr Kaitara's comments to the patient, and the finding that Mr Kaitara inflamed the situation without any reference to the evidence.

• [50] The Respondent submits that Mr Kaitara's characterisation of Ms Winstanley's findings is misconceived and that the findings made by her were reasonably open on the evidence.

• [51] The Respondent notes that Mr Kaitara does not dispute that he applied force to physically restrain the patient by using 'pain compliance techniques' but that he denies the use of force was inappropriate.[24]

• [52] The Respondent submits that Mr Kaitara admitted to:[25]

(a) holding both the patient's wrists in his right hand;

(b) elevating the patient's arms over their head;

(c) prying the patient's fingers individually from the paper cup; and

(d) applying 'pressure point compliance' to the infra-orbital nerve, including 'graduated use of force'.

• [53] The Respondent submits that it was reasonable for Ms Winstanley not to accept Mr Kaitara's explanation that he believed he was complying with the Restraint Procedure. Ms Winstanley considered that the Restraint Procedure clearly requires that de-escalation techniques must be applied and escalating to using a restrictive practice is a last resort. The Respondent says that Ms Winstanley reasonably found that Ms Hope was attempting to apply de-escalation techniques at the time of Mr Kaitara's physical restraint and that she did not direct Mr Kaitara to apply physical restraint.[26]

Conclusion: did the decision-maker make or consider unreasonable inferences unsupported by evidence?

• [54] Aspects of this reason for appeal are also addressed in Mr Kaitara's other reasons for appeal. In circumstances where Mr Kaitara admits that he chose to use the pain compliance technique, Ms Winstanley turned to whether the use of that pain compliance technique was appropriate in the circumstances. Having read Ms Winstanley's decision, I do not find that it was focused on the matters set out at paragraph [49] above. It seems to me that the decision was based upon a consideration of Mr Kaitara's actions in the context of his experience, the expectations of him as an Enrolled Nurse, CHHHS procedures regarding least restrictive practice and de-escalation techniques. To the extent that Ms Winstanley found that Mr Kaitara was frustrated by the patient's behaviour and the situation, such a finding was reasonably open to her on the basis of Mr Kaitara's admission that he had stated 'this is bullshit' immediately following the incident.

Reason for Appeal: The decision-maker applied clinical judgment inflexibly to Mr Kaitara's conduct resulting in a failure to properly exercise their discretion.

• [55] Mr Kaitara says that the decision-maker did not identify the source of clinical judgment that the decision-maker relied upon by qualification or experience to conceive Mr Kaitara's actions as a nurse. Mr Kaitara also notes that he was not interviewed by Mr Brose who undertook the clinical review.[27]

• [56] In reply, the Respondent submits that Ms Winstanley appropriately considered Mr Kaitara's conduct in the context of the requirements of the Restraint Procedure and the requirements of his role as an Enrolled Nurse.[28]

• [57] The Respondent says that Mr Brose's clinical review dated 28 October 2024 considered Mr Kaitara's account of the incident in his Please Explain Response and that Mr Kaitara was provided with a copy of the clinical review as an attachment to the Show Cause Notice.[29]

• [58] Mr Kaitara says that the decision-maker disregarded that he had or could have, complied with the Restraint Procedure on the basis of an 'unsupported and unverified belief' that the Registered Nurse was applying deescalation techniques and did not authorise the use of physical restraint.[30]

• [59] In reply, the Respondent submits that it was reasonably open to Ms Winstanley to find that Mr Kaitara had not complied with the Restraint Procedure in circumstances where he does not dispute that Ms Hope did not direct him to use force on the patient or that the use of force was in response to the patient throwing water on Ms Hope.[31]

• [60] The Respondent says that as a clinical staff member involved in the treatment of adult patients, Mr Kaitara is required to comply with the Restraint Procedure. The Respondent says that this procedure relevantly requires that:[32]

(a) consideration may only be given to the application of restraint if the patient's behaviour has not abated with less restrictive matters and restraint is reasonably believed to be the last and only option to prevent harm to the patient and others, and a failure to intervene poses an unreasonable risk of imminent harm to the patient or others;

(b) in the case of a true emergency, the Registered Nurse in charge of the shift may initiate the use of restraint. Any clinical staff are to act on instructions from the Registered Nurse who is initiating the emergency restraint; and

(c) the restraint should be the least restrictive to affect the desired outcome.

• [61] Mr Kaitara says that the decision-maker dismissed the notion of competing versions of events from Mr Kaitara and other witnesses and disregarded the immediate circumstances present at the time and preferred the version given by the Registered Nurse without investigating the matter.[33]

• [62] In reply, the Respondent says that it was reasonably open for Ms Winstanley to not be persuaded by Mr Kaitara's version of events and prefer the evidence of other witnesses. Where the evidence of a particular witness was preferred, this was noted in the decision and Ms Winstanley provided an explanation. The Respondent says that the fact that Ms Winstanley did not afford the factors raised in Mr Kaitara's response the same weight as he believes she ought to have done, does not render the decision unfair or unreasonable.[34]
• [63] The Respondent submits that Ms Winstanley acknowledged Mr Kaitara's show cause submission that there were details in Ms Hope's statement that were not corroborated in Ms Eustace's statement. Ms Winstanley considered the differences in the accounts and found that those differences were not material.[35]

• [64] The Respondent says that Mr Kaitara, Ms Hope and Ms Eustace provided consistent evidence that Mr Kaitara's use of force was in response to the patient swearing and throwing a cup of water on Ms Hope. The Respondent says that it was reasonable for Ms Winstanley to find that there was not an unreasonable risk of imminent harm to the patient or others to justify the application of restraint as required by the Restraint Procedure.[36]

• [65] The Respondent says that it was also reasonably open to Ms Winstanley to accept the consistent evidence of Ms Hope and Ms Eustace that Mr Kaitara did not attempt to de-escalate the patient before applying the physical restraint.

• [66] Further, the Respondent says that Mr Kaitara does not dispute that Ms Hope, as the Registered Nurse in charge of the shift, did not initiate or direct the use of restraint or direct Mr Kaitara to apply physical force on the patient in accordance with the Restraint Procedure.

• [67] Mr Kaitara says that the decision-maker disregarded aspects of his response and/or found against him on the basis of an 'implicit view' that the force could never be authorised under its MAYBO training program, and that the failure of the CHHHS to train him meant that his actions could only be characterised as harm. Mr Kaitara says that this is not consistent with the evidence presented or able to be validated through an investigation.

• [68] Mr Kaitara says that the decision-maker disregarded aspects of his response and/or found against him on the basis that the decision-maker formed a view that the incident was being managed by a Registered Nurse without having any evidence or justification for that view, beyond a contention that she was a Registered Nurse and was present at the time of the incident.[37]

• [69] The Respondent also says that it was reasonable for Ms Winstanley to not accept Mr Kaitara's explanation that he had not completed the most recent OVP training at the time of the incident. The Respondent says that while Ms Winstanley accepted that Mr Kaitara had not completed the most recent training at the time of the incident, it was open to her to find that it is a requirement of Mr Kaitara's role as an Enrolled Nurse to respond appropriately to sudden alterations in the health status of patients as directed by the supervising Registered Nurse.[38]

• [70] The Respondent says that Ms Winstanley found Mr Kaitara's conduct was inconsistent with the requirements of his role as he had not used force on the patient at the direction of the supervising Registered Nurse, Ms Hope. The Respondent notes that Ms Hope, had in fact told Mr Kaitara to stop and says that the force was not warranted in the circumstances.[39]

• [71] The Repsondent submits that in circumstances where Ms Winstanley found Ms Hope did not direct Mr Kaitara to use force on the patient, and the patient's conduct did not present a significant or immediate risk of physical harm at the time Mr Kaitara used the physical force on the patient, it was reasonable for Ms Winstanley to be satisfied the use of force was inappropriate and the Allegation was therefore substantiated.[40]

Conclusion: Did the decision-maker apply inflexible clinical judgment?

• [72] Ms Winstanley's decision was made with reference to Mr Kaitara's role description, relevant policies and procedures of CHHHS, witness statements regarding the incident and the circumstances surrounding the incident. Ms Winstanley determined that Ms Hope did not direct Mr Kaitara to apply a pain compliance technique and that it was not open to Mr Kaitara to decide to do so himself where the circumstances did not warrant it. Ms Winstanley considered a clinical review of the incident which found that the implementation of the pain compliance technique was not warranted.

• [73] Ms Winstanley was aware of the patient's behaviour, including that the patient had thrown a cup of water at Ms Hope. Ms Winstanley does not condone that action by the patient, however, she does state that this does not reasonably constitute a significant or immediate risk of harm or assault.
• [74] I do not find that Ms Winstanley applied inflexible clinical judgment in finding that Mr Kaitara used inappropriate force against a patient when he applied the pain compliance technique.

Reason for Appeal: The decision-maker applied an unreasonable standard or expectation

• [75] Mr Kaitara says that the decision-maker applied an unreasonable standard or expectation in relation to him managing the physical restraint by failing to consider the sudden nature of the incident.

• [76] The Respondent denies Ms Winstanley applied an unreasonable standard or expectation on Mr Kaitara having regard to the 'sudden nature' of the incident. The Respondent submits that Mr Kaitara is an Enrolled Nurse with close to 4 years' experience with the CHHHS in his present role.[41]

• [77] The Respondent submits that Mr Kaitara's role description requires that he exercises greater levels of professional judgment and critical thinking with respect to patient-centred care in rapidly changing environments. The Respondent also says that Mr Kaitara's role description requires him to respond appropriately to sudden changes in the health status of a patient as directed by the supervising Registered Nurse.[42]

Conclusion: Did the decision-maker apply an unreasonable standard or expectation?

• [78] There is nothing in the submissions or material before me to indicate that the sudden change in circumstances in the room provided reason for Mr Kaitara to depart from the Restraint Procedure, or in any case, use the pain compliance technique. While the patient was being non-compliant and had thrown water on Ms Hope, there is no evidence that there was an imminent risk to the safety of the employees present or to the patient that could not have been addressed by waiting for additional support.

• [79] Ms Winstanley did consider Mr Kaitara's explanation that he had not completed the MAYBO OVP training. Ms Winstanley found that this explanation was not sufficient to support that his chosen use of restraint was appropriate and that he was not aware of his obligations. Ms Winstanley found that Mr Kaitara's role required him to follow the direction of the supervising Registered Nurse and that the available evidence made clear that he did not do so. Ms Winstanley explained her finding that 'any physical intervention at all was not warranted in the circumstances'.

• [80] Even taking into account Mr Kaitara's submission that he has not had training in OVP since 2013, and that the pain compliance technique he used on 6 September 2024 was part of that training, I find that in the circumstances, it was reasonable for Ms Winstanley to be satisfied that the force used was inappropriate.

• [81] Given Mr Kaitara's training and experience, I do not find Ms Winstanley applied an unreasonable standard or expectation on Mr Kaitara. It was reasonable for Ms Winstanley to expect Mr Kaitara to follow the direction of the supervising Registered Nurse and to find that Mr Kaitara used the pain compliance technique of his own accord. It was also reasonable for Ms Winstanley to expect that Mr Kaitara would not use force or inflict pain or distress upon a patient where the circumstances did not warrant doing so.

Reason for Appeal: Failure to comply with Directive 02/24: Positive Performance Management

• [82] Mr Kaitara submits that the CHHHS has not complied with the requirements of Directive 02/24: Positive Performance Management ('the Positive Performance Management Directive'), in managing his performance in relation to the Allegation and says that he has not been spoken to regarding his version of events at all prior to the decision.

• [83] The Respondent submits that this is a not a matter where the positive performance management principles would apply. The Respondent says that any allegation regarding the inappropriate use of force against a patient is extremely serious and that grounds for discipline pursuant to s 91(1)(h) of the PS Act exist.[43]

• [84] The Respondent says that prior to the commencement of the process, by letter dated 24 September 2024, Ms Winstanley asked Mr Kaitara to respond to a concern that on 6 September 2024, he used inappropriate and/or excessive force on a patient. His response outlining his version of events was considered in determining whether to commence a discipline process.

Conclusion: Was there a failure to comply with the Positive Performance Management Directive?

• [85] As has been discussed above, I do not find that the decision not to speak to Mr Kaitara about the incident leads to any failure to comply with a relevant Directive. In the circumstances, the Respondent considered that Mr Kaitara's conduct was of a serious nature and that it warranted consideration under the Discipline Directive.

• [86] The Positive Performance Management Directive is directed at managing the work performance and personal conduct of employees in circumstances where the behaviour is not sufficiently serious to warrant disciplinary action. I accept that it was not appropriate to deal with the serious allegation that inappropriate force had been used on a patient to be dealt with as an instance of unacceptable work performance.

Reason for Appeal: Failure to appropriately apply the 'Briginshaw Test'

• [87] Mr Kaitara says that the decision-maker failed to appropriately apply the Briginshaw Test in weighing up the evidence and reaching a decision about Mr Kaitara's conduct.

• [88] The Respondent acknowledges the seriousness of the Allegation and the potential outcomes flowing from the decision and says that Ms Winstanley discharged the onus to undertake a rigorous evidence-based process in substantiating the Allegation on the balance of probabilities.
• [89] The Respondent says that Ms Winstanley carefully considered all the material before her, including Mr Kaitara's response, when making her decision.

Conclusion: Did the decision-maker fail to appropriately apply the 'Briginshaw Test'?

• [90] Having reviewed the material, I find that Ms Winstanley was clearly cognisant of the seriousness of the Allegation and disciplinary finding. I find that she properly considered all information available to her, carefully took Mr Kaitara's response into account and ultimately found that the Allegation was substantiated and gave rise to grounds for discipline.

• [91] Mr Kaitara's application of the pain compliance technique was admitted by him. In those circumstances, it was necessary for Ms Winstanley to be satisfied that the evidence she had available to her demonstrated that the use of the technique was not appropriate in the circumstances

• [92] Ms Winstanley's decision provides detailed reasons and reference to the evidence upon which the findings were made. I am satisfied that Ms Winstanley appropriately applied Briginshaw principles in making her decision.

Other matters: Consideration of Mr Kaitara's human rights

• [93] The Respondent submits that Mr Kaitara's human rights were considered in making the decision. The Respondent submits that Ms Winstanley acknowledged the decision may impact and potentially limit Mr Kaitara's human rights, however she considered any limitation was demonstrably justified because of the public interest in ensuring public servants and employees of the CHHHS conduct themselves appropriately in a manner consistent with the Code of Conduct, including engaging in an appropriate and safe manner with patients which complies with relevant policies and procedures.[44]

• [94] Mr Kaitara does not address this matter in his appeal. However, for completeness, I am satisfied that the decision-maker considered Mr Kaitara's human rights.

• [95] Having set out her findings from pages 3 to 5 of the decision letter, Ms Winstanley ultimately finds pursuant to s 91(1)(h) of the PS Act, that Mr Kaitara has contravened a relevant standard of conduct, in that he did not comply with his role description of Enrolled Nurse or the Restraint Procedure.

• [96] Having determined that the alleged conduct was substantiated and Mr Kaitara had not provided a reasonable excuse for his conduct, it was open to Ms Winstanley to find that Mr Kaitara had breached a standard of conduct in a way sufficiently serious to warrant disciplinary action.

• [97] For the reasons given above, I am satisfied that the decision of Ms Winstanley was fair and reasonable.

• [98] The decision appealed against is confirmed.

1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

[2] Occupational Violence Prevention ('OVP').

[6] Industrial Relations Act 2016 (Qld) s 562B(3).

[7] Mr Kaitara's Appeal Notice filed in the Industrial Registry on 1 September 2025, Schedule, [9(a)].

[8] Also referred to as a 'Please Explain' or 'Please Explain response'.

[9] Appeal Notice (n 6), Schedule [9(a)(ii].

[11] Appeal Notice (n 6), Schedule, [9(a)(iii) and (iv)].

[13] Respondent's submissions filed in the Industrial Registry on 16 September 2025, [15].

[14] Appeal Notice (n 6), Schedule, [9(c)(i)]

[15] Respondent's submissions (n 12), [36(a)].

[16] Appeal Notice (n 6), Schedule, **[**9(c)(ii)].

[17] Respondent's submissions (n 12), [36](b).

[19] Appeal Notice (n 6), Schedule, [9(c)(iii)].

[20] Respondent's submissions (n 12), [36(c)].

[23] Appeal Notice (n 6), Schedule, [9(d)].

[24] Respondent's submissions (n 12), [17].

[27] Appeal Notice (n 6), Schedule, [19(e)(i) and (ii)].

[28] Respondent's submissions (n 12), [38(a)].