Lam v Gold Coast Hospital and Health Service [2021] ICQ 10

Public Service Act 2008, Ch 6, Pt 2, s 188A

Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR 336, cited

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348, cited

FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33, followed

Fox v Percy (2003) 214 CLR 118, followed

House v The King (1936) 55 CLR 499, followed

Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993, cited

Li v The Queen [2003] NSWCCA 290; (2003) 139 A Crim R 281, followed

Mathieu v Higgins [2008] QSC 209, cited

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, followed

R v R (1989) 18 NSWLR 74, cited

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, cited

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306, cited

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

Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, cited

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, cited

Wood v R [2012] NSWCCA 21; (2012 84 NSWLR 581, followed

• [1] The appellant, Mr Roger Eric Chui Chun Lam, appeals against a decision made by Deputy President Merrell sitting in the Queensland Industrial Relations Commission (QIRC) dismissing his application for reinstatement to his position with the Gold Coast Hospital and Health Service[1] (the Health Service).

• [2] Mr Lam was employed by the Health Service in October 2013. He held the position as a Protective Services Officer (PSO) at the Gold Coast University Hospital.
• [3] Following a complaint about Mr Lam's conduct as a PSO, Donna Scovell[2] was appointed to undertake an investigation into four allegations against him.[3] They 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

on 18 March 2018, at approximately 2.45 pm, Mr Lam allegedly used inappropriate force towards Patient UR 1170587 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;

• 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; 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 S!S030341). It was alleged that Mr Lam said words to the effect of: 'I want to slap him around' and/or 'Can I slap him'."

• [4] Ms Scovell conducted an investigation. She interviewed Mr Lam and Mr Matthew Jackson,[4] the Workplace Health and Safety Education Manager for the Health Service, and she had access to various other sources of information.
• [5] Importantly, the PSOs wear cameras (body cams) which record their surroundings. There was body cam footage of all four incidents.
• [6] Ms Scovell provided her report to the Health Service. That report contained a summary of her findings:

"The investigation focused on three alleged incidents of PSO Lam using inappropriate force on patients, and, if the decision-maker accepts the evidence and reasoning outlined in this report; then each of these were substantiated on the balance of probabilities as follows:

1. PSO Lam used inappropriate force towards Patient UR 628423 during a code black emergency response on 8 February 2018.
2. PSO Lam used inappropriate force towards Patient UR 1170587 during a code black emergency response on 18 March 2018.
3. PSO Lam used inappropriate force towards Patient UR 1159140 during a code black emergency response on 21 March 2018.

In relation to the fourth allegation that PSO Lam made comments to the effect that he wanted to slap / smack a patient, PSA Lam did not deny making the comments which could be heard on his BWC[5] footage of the incident. He said that he made the comments to make light of the situation. There was sufficient evidence therefore, to substantiate the following allegation:

1. PSO Lam made inappropriate comments to the CTC[6] regarding Patient UR 112361 during a ode black emergency response on 7 April 2018."

• [7] Ms Scovell's report was acted upon by Ms Rita Hudson, the Acting Executive Director, People and Corporate Services. She wrote to Mr Lam on 4 September 2018 advising him of various things and, importantly, inviting him to show cause why he should not be disciplined. Of some significance, she told Mr Lam that the body cam footage was available for him to view.
• [8] On 5 October 2018, Mr Lam responded to the show cause letter. He:
  1. denied that he used inappropriate force in relation to allegations 1, 2 and 3;
  2. admitted making the comment alleged in allegation 4 but said that it was meant to be humorous and light-hearted;
  3. denied the accuracy of some of the details in the report, complained that the other PSOs had not provided statements, and pointed out that no patients who were allegedly the subject of excessive force had made complaints.
• [9] Ms Hannah Bloch is the Executive Director, People and Corporate Services. She found the four allegations proved and called on Mr Lam to show cause why his employment ought not be terminated. Mr Lam responded.
• [10] The appropriate delegate with the relevant authority to dismiss Mr Lam was Ron Calvert, Chief Executive, Gold Coast Hospital and Health Service. On 29 January 2019 Mr Lam's employment was terminated by letter of that date from Mr Calvert.
• [11] Mr Lam then made application to the QIRC for reinstatement.

Proceedings before the Queensland Industrial Relations Commission

• [12] On the appeal to the Court, Mr Lam represented himself. Before the QIRC, Mr Lam was represented by Mr J Harding, an industrial advocate of the Australian Workers' Union of Employees, Queensland.
• [13] The State was represented by Mr G Brown who is the Senior Director, Human Resources Services for Gold Coast Health. Mr Brown was not only the advocate for the Health Service but was also a witness in the proceedings before the QIRC. That fact forms the basis of one of the grounds of appeal and I will return to that issue.
• [14] The decision to dismiss Mr Lam was made in reliance upon process in Chapter 6 of the Public Service Act 2008 (the PS Act). Ms Bloch found, in relation to each of allegations 1, 2 and 3, that Mr Lam was guilty of misconduct[7] or was guilty of breach of a code of conduct.[8] In relation to allegation 4, she found a breach of a code of conduct. Deputy President Merrell examined the relevant sections.[9] There is no ground of appeal to the Court suggesting error in his analysis. As later explained, the real issue is a factual one; whether excessive force was proved in relation to allegations 1, 2 and 3.
• [15] Mr Lam's application to the QIRC was based on provisions in the Industrial Relations Act 2016 (the IR Act). Chapter 8, Part 2 concerns Dismissals and Division 2 of that Part concerns Unfair Dismissals.
• [16] Section 316 provides:

A dismissal is unfair if it is harsh, unjust or unreasonable."

• [17] Section 317 authorised Mr Lam's application for reinstatement based on the allegation that the dismissal was unfair.
• [18] Section 320 prescribes matters which the QIRC must take into account when considering whether a dismissal was unfair. That section provides:

"320 Matters to be considered in deciding an application

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

(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 or 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."

• [19] Section 321 empowers the QIRC to order reinstatement if the dismissal is found to be unfair.
• [20] Deputy President Merrell directed himself to the relevant provisions and various authorities where those, and equivalent, provisions in other jurisdictions had been considered.[10] There is no complaint on the appeal to me that the Deputy President has misdirected himself on the appropriate principles to apply.
• [21] It is sufficient for me to observe that the Deputy President correctly approached his task by reference to the following:
  1. The application to the QIRC is not an appeal from the decision to dismiss.
  2. The QIRC must hear all the evidence relevant to the question of whether the dismissal was unfair and to make a determination on that issue.
  3. The QIRC must determine whether the four allegations are proved on the balance of probabilities applying the Briginshaw[11] principles.
  4. If the allegations are proved, the QIRC must determine whether those allegations amount to misconduct as defined in the PS Act.
  5. The QIRC must then apply Chapter 8, Part 2 of the IR Act and determine whether the dismissal was unfair.
• [22] Various affidavits were admitted into evidence by the Deputy President and he heard evidence from five witnesses:
  1. Mr Nigel Hoy;
  2. Ms Hannah Bloch;
  3. Mr Matthew Jackson;
  4. Mr G Brown;
  5. Mr Lam.
• [23] Mr Hoy is the Senior Director, Operational Support Services at Gold Coast Hospital. He explained that he was briefed by Mr Graham Cameron, the Manager, Protective Services, about a staff complaint against Mr Lam. That led Mr Hoy to view the relevant body cam footage. He explained that measures had been taken to reduce complaints against PSOs. He then said:

"Reasons for why the Applicant's re-instatement would be impracticable

1. If the Applicant returns to GCH this would have a destabilising and adverse effect on the team and the management of the team. It would compromise the safety of other staff and stakeholders and harm the reputation of GCHC.
2. The Applicant's return would also undermine established processes in place that deal with matters of excessive use of force, the discipline process and accountability of people for their own actions whilst employed by Queensland Health.
3. Under the provisions of the Work Health and Safety Act 2011 (Qld) I have a primary duty of care for workers' health and safety whilst engaged by me and I do not feel that the Applicant's reinstatement in the workplace would provide a safe environment given the strength and seriousness of the allegations against him. The Applicant has found himself in this position due to the exercise of his own will outside of current training provided to him and also outside of obligations imposed upon him by the Queensland Public Service Code of Conduct in that he has not treated members of the public with courtesy and respect."

• [24] I have already mentioned Ms Bloch. She gave evidence explaining the procedures which resulted in Mr Lam's dismissal. As to the reason for her making the recommendation to dismiss Mr Lam, she said in her affidavit:

"30. As with the brief previously provided to me, I carefully considered the materials including the draft letter.[12]

After consideration of all the available evidence, including the Applicant's further response about why his employment should not be terminated, I formed the view that:

(a) there was no justification for the use of force applied by the Applicant in relation to allegations 1 to 3;

(b) similarly, the Applicant had no reasonable excuse for the comments that he had made in relation to allegation 4;

(c) the Applicant lacked insight or remorse for his actions;

(d) even when faced with the body worn camera footage, the Applicant was not able to reflect on his actions and why GCH and his managers were concerned;

(e) the Applicant made no commitment to addressing the concerns going forward;

(f) the Applicant's behaviour was repeated and placed patients, staff and other persons at risk of injury. It was not a once-off incident;

(g) the Applicant had an inability and unwillingness to accept the opinions and assessments of his actions by his managers and a subject matter expert;

(h) the Applicant's behaviour did not improve after he received targeted training in Occupational Violence Prevention as recently as 7 March 2018, with certain incidents then occurring on 18 March 2018 (allegation 2) and 21 March 2018 (allegation 3). This together with (g) above, demonstrated to me that the risk of recurrence of a similar event was very high;

(i) as a health service, the safety and wellbeing of patients is paramount. GCH has adopted a zero tolerance approach to occupational violence from both patients and staff;

(j) allowing the Applicant to continue in his role would give rise to an unacceptable level of risk for GCH; and

(k) in the circumstances, termination of employment was the appropriate penalty.

1. Although I sympathised with the Applicant's family responsibilities and the impact dismissal would have on him, I did not consider that the Applicant had provided any compelling reason why his employment should not be terminated. The seriousness of the Applicant's conduct outweighed concerns about personal or financial hardship.
2. On or about 25 January 2019, I endorsed the recommendations set out in the brief."

• [25] Mr Jackson is the Workplace Health and Safety Education Manager at Gold Coast Health. He is responsible for training staff in patient handling. He was interviewed by Ms Scovell. He gave expert evidence to the QIRC as to the inappropriateness of the actions which he saw Mr Lam taking as depicted on the body cam footage in relation to allegations 1, 2 and 3.
• [26] Mr Jackson then, in his affidavit, said:

"30. I maintain the views I expressed in my interview with Ms Scovell and say further that:

(a) The Applicant's behaviour in each of Allegations 1 to 3 demonstrates the repeated use of (or attempted use of) the same pain compliance techniques, regardless of the situation or patient's response.

(b) The techniques used were wrong or inappropriate because they were not applied in accordance with the Applicant's training. In each of the incidents, the pain compliance holds were attempted or undertaken where the patient was already effectively restrained.

(c) The use of pain compliance holds in a patient with an acquired brain injury is unlikely to ever be appropriate as they cannot understand that the pain is being applied to gain compliance.

(d) In each of the incidents the Applicant's conduct escalated the situation.

(e) The Applicant's repeated conduct placed patients, himself and other staff at risk of injury.

(f) The Applicant clearly did use an inappropriate amount of force. In relation to Allegation 1 for example, the Applicant can be seen pushing his thumb deep into the patient's cheek.

(g) The Applicant's apparent concerns about head-butting or spitting do not justify or explain the use of the techniques and force applied, when there were other options open to him to reduce these risks (these are explained further below);

(h) The Applicant is either unable or unwilling to accept that the techniques used by him were inappropriate and inconsistent with his training as a PSO. The Applicant maintains he has done nothing wrong.

(i) The Applicant has not demonstrated that he wishes to learn from his mistakes or improve his conduct.

(j) If the Applicant returned to work at GCH he would likely present a risk to himself and others. This is an unacceptable particularly given that:

(i) patients in our care are generally vulnerable due to their age, medical condition or being under the influence of drugs or alcohol; and

• [27] As observed, Mr Jackson's evidence was expert opinion evidence. While Mr Harding cross-examined Mr Jackson as to the correctness of his opinions, he did not object to Mr Jackson's evidence suggesting a lack of expertise. Mr Harding was, in my respectful view, right to adopt that course. Mr Jackson was clearly qualified to express the views which he did.
• [28] I have already mentioned Mr Brown. He swore an affidavit in which he gave evidence falling within four separate categories:
  1. He explained Mr Lam's role as a PSO.
  2. He explained the steps taken in the investigation.
  3. He explained the steps taken in the disciplinary process.
  4. He gave responses to various assertions made by Mr Lam in his affidavits filed in the QIRC on the reinstatement application.
• [29] It is, in the main, the last category of Mr Brown's evidence which raises the most serious questions as to the appropriateness of Mr Brown acting as both advocate and witness. In the other three categories, Mr Brown generally recites historical facts, although he does demonstrate that he was involved in the investigation, a decision-making process which led to Mr Lam's dismissal. In the last category, he expressed views about Mr Lam's conduct.
• [30] In that respect, Mr Brown said in his first affidavit:

1. I have read the Applicant's application for reinstatement and Aaron Santelises; affidavit signed on 6 February 2019.
2. At paragraph 7(a) of his affidavit, Mr Santelises[13] states that the Applicant's dismissal was 'harsh, unjust and unreasonable because the disciplinary action was disproportionate to the conduct alleged'. I disagree. My view remains the same now as it was in December. The Applicant's conduct was sufficiently serious to warrant his immediate dismissal and in my opinion the disciplinary sanction was proportionate to the substantiated conduct.
3. PSO's hold a position of trust within GCUH and they work with patients when they are at their most vulnerable. The Applicant's substantiated conduct that formed the basis for the First Show Cause Process was an abuse of that trust. Allegations 2 and 3 occurred within weeks of the Applicant having received refresher training on ABM techniques: Further, the allegations that now form the subject matter of the Second Show Cause Process demonstrate that the Applicant did not learn anything about his conduct from the First Show Cause Process.
4. The Applicant appears to have no insight into his behaviours and I have no confidence that if he were permitted to return to work, an incident of a similar nature would not arise again. There is in my view a significant risk that the Applicant would conduct himself in a way that would impact on his safety or the safety and wellbeing of other persons, including patients.
5. Since October 2016, GCH has dismissed four employees (including the Applicant) for the use of excessive force towards patients. This group consisted of three PSOs and one nurse.
6. At paragraph 7(b) of his affidavit, Mr Santelises states that the dismissal was harsh because it was 'not for a reason that could withstand scrutiny.' Again I disagree, I am confident that the reason for the Applicant's dismissal can withstand scrutiny.
7. A comprehensive investigation was undertaken which included the engagement of a subject matter expert.
8. At paragraph 7(c) of his affidavit, Mr Santelises states that the dismissal was unjust because 'there was not sufficient evidence for the Respondent to justify the dismissal on the 'balance of probabilities'' considering the mitigating factors. I also disagree with this statement, there was compelling evidence that the Applicant had engaged in the conduct alleged which is outlined above.
9. At paragraph 7(d) Mr Santelises states the dismissal was harsh because of 'the social and economic consequences on the Applicant'. The decision to dismiss an employee is never one that is taken lightly and inevitably there will be social and economic consequences. The Applicant's mitigation was taken into account but when all of the evidence was considered on an overall basis, it was concluded that dismissal was the most appropriate outcome." (emphasis added)

"93. I have already mentioned above that the Applicant continues to show no insight into his behaviours and I am surprised to see that he says that he believes that he has 'complied with the Respondent's policies and procedures relevant to [his] role as a PSO'." (emphasis added)

"98. The Applicant claims that between the dates of 8 February 2018 and until after 7 April 2018 none of his supervisors or managers raised with him that the force he was using was inappropriate.

1. What the Applicant says is contradicted by what Mr Spencer said in his interview with Ms Scovell on 26 July 2018 when he said that 'he raised concerns with Mr Lam directly on several occasions about his pressure point control point used with patients, however [Mr Spencer] became concerned when he refused to acknowledge that what he was doing was wrong' (page 1 of Attachment 7 of the Report)."

• [31] Mr Lam swore two affidavits and gave oral evidence.
• [32] In his first affidavit:
  1. Mr Lam explained his actions in relation to each of the four allegations.
  2. In relation to each of allegations 1, 2 and 3, Mr Lam explained why he did not regard the force used by him as excessive.
  3. Concerning allegation 4, Mr Lam said this:

"73. I made a comment out of earshot of the patient that 'he needs a good slap around the chops' and 'can I slap him?'

1. I was trying to add levity to a tense situation, and in no way did I ever intend to act upon the comments and actually harm the patient. Other employees were also making light-hearted comments, with one nurse commenting on whether the patient had been drinking bourbon or gin as he was so upset.
2. The comments I made were not aggressive, and there was nothing to suggest that I would actually carry out the comments.
3. I have admitted to making the comments on a number of occasions and I regret making the comments. I was upfront and contrite about making the comments. Presented with a similar scenario, I would not make those comments again."
4. Mr Lam complained of bullying and discrimination:

"78. In the time l was employed as a PSO I was subject to bullying and discrimination from colleagues, supervisors and managers.

1. I raised these concerns with the Respondent but my complaints were not acted upon.
2. I feel as though I have been targeted by the Respondent. I have been repeatedly denied opportunities for advancement and full-time permanency."
3. Mr Lam pointed out:

(a) that none of the patients or their families had complained about his actions;

(c) he would suffer financial hardship if not reinstated.

1. Mr Lam complained about the disciplinary process, in particular:

(a) he had not previously been instructed that techniques he was using to handle patients were inappropriate;

(b) when initially interviewed, he was told that the matter was not serious and Union involvement was not necessary;

(c) he was not stood down at any time during the disciplinary process, thus suggesting there were no safety concerns about him continuing to work.

[33] Mr Lam's second affidavit answers specific matters made in the affidavits of Mr Jackson, Ms Bloch, Mr Hoy and Mr Brown. In particular, Mr Lam took issue with Mr Jackson's opinion that the force used in respect of allegations 1, 2 and 3 was excessive or that the techniques were inappropriate. He explained reasons for his disagreement with Mr Jackson.

• [34] In relation to each of allegations 1, 2 and 3, Deputy President Merrell generally accepted the evidence of Mr Jackson and rejected the evidence of Mr Lam. He found those allegations proved.
• [35] The conduct which constituted allegation 4 was admitted. However, the Deputy President found:

"[132] I do not find that Mr Lam contravened, without reasonable excuse, cl 1.5 of the Code.

[133] While that part of the Code provides that an employee bound by the Code will treat clients with courtesy and respect, it seems to me that Mr Lam's comments were not made in a serious way, were not made in a way so that the patient or a member of the public could have heard his comments and was banter to make light of the situation."

• [36] As to Mr Lam's claims of bullying and discrimination, the Deputy President found:

"[134] Mr Lam further stated that in the time he was employed as a PSO, he was subject to bullying and discrimination from colleagues, supervisors and managers, he had raised his concerns with the Health Service but his complaints were not acted upon and that he feels he has been targeted by the Health Service and has been repeatedly denied opportunities for advancement and full-time permanency.

[135] Mr Lam was cross-examined about these claims. His evidence was that he made these claims to the Health Service in his show cause response during the disciplinary process. Mr Lam agreed that on 6 December 2018 he was invited to make a complaint but that he did not make such a formal complaint of the Health Service.

[136] There is no evidence that Mr Lam, whilst employed by the Health Service was the subject of bullying or unlawful discrimination and there is no evidence that tends to prove the allegations were made against Mr Lam as a result of any bullying or discrimination by any person."

• [37] The Deputy President rejected Mr Lam's claims that the Health Service did not follow the appropriate disciplinary policies and procedures.[14]
• [38] Having regard to the fact that only allegations 1, 2 and 3 were found to be proved, the Deputy President then considered each of the matters prescribed by s 320 of the IR Act and concluded that the dismissal was not unfair.[15]

• [39] As already observed, it was the function of the QIRC to hear and consider all the evidence and determine whether the dismissal was unfair.
• [40] The function of this Court on an appeal from the QIRC is fundamentally different. Section 557 of the IR Act provides relevantly:

(1) The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of -

(2) Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court's leave, on a ground other than -

• [41] Mr Lam raised six grounds of appeal being (a) - (f). The grounds, with particulars are:

"(a) The Deputy President eered[16] in concluding that the dismissal of the Appellant was not harsh, unjust or unreasonable.

The Appellant believe the conclusion of the dismissal was harsh, unjust and reasonable. This decision support an unfair, incomplete and unreliable investigation that led to the Appellant dismissal which has caused severe financial impact, physical and mental health issues to him and his family . It was also disproportionate to the gravity of the misconduct in respect of which the employer acted.

(b) The Deputy President eered[17] by finding, contrary to the evidence, that the Appellant had engaged in the misconduct as alleged against him.

The Deputy President found that the Appellant was guilty of the misconduct alleged against him and has not taken into consideration the Appellant employment record. The Appellant does not have any disciplinary issue all throughout his employment for the HHS.

(c) The Deputy President eered[18] in giving improper weight to the evidence of Mr Matthew Jackson.

Mr Jackson was not an Independent subject matter expert but an employee of the HHS and in a position that he has to support management decision, whose evidence and statements during the investigation differ.

(d) The Deputy President denied the Appellant natural justice and procedural fairness, and eered at law, by allowing into evidence footage which had not been disclosed to the Applicant prior to the hearing, and which was not relevant to matters in issue in the proceeding.

The footages which had not been disclosed prior to the hearing and the Deputy President allowed into evidence and cross examination over the footages should not have been allowed. This unfairly impacted the Appellant as he was unable to review the footages and prepared for the cross examination. The Appellant believed it affected his ability to give evidence during the hearing.

(e) The Deputy President denied the Appellant natural justice and procedural fairness, and eered[19] at law, by allowing Mr Brown to give evidence after being acted as advocate for the Respondent, and after having heard the entirety of the evidence led in the case.

The Appellant believed he was denied natural justice and procedural fairness as Mr Brown could not be cross examined in fairness because he heard all the evidence led to the case. Due to that reason Mr Harding and the Appellant decided not to ask Mr Brown certain questions as he already heard all the evidence. Mr Brown was asked one question about a statement he made in his affidavit but could not substantiate his claim.

(f) The Deputy President eered[20] at law insofar as it found that witnesses called on behalf of the Respondent were witnesses of credit, and/or that the Applicant was not a witness of credit.

The witnesses that were called by the Respondent based their evidence on the Protective Services Manager Mr Graham Cameron statement. Two of the witnesses have never met or spoken to the Appellant prior to the case at the QIRC. Mr Cameron who built the case against the Appellant was the only person who spoke to him on 9 April 2018 about the incidents and was not a witness in the case whose statement remains untested. All witnesses in this case never had any discussion with the Appellant over the incidents." (emphasis added)

• [42] After the respondent's submissions were filed, Mr Lam filed reply submissions. There, this was said:

"4. It is accepted that an appeal is, without leave, limited to the grounds of the ground of - (a) error of law; or (b) excess, or want, of jurisdiction.

1. In light of the significant impact on his financial and family situation, and the employer's own procedural defaults towards the appellant, the appellant seeks leave under CA 557(2) to appeal on any errors raised in this outline which may be characterised solely as errors of fact."

• [43] The reply submissions raise a number of issues to which I will refer and deal.

Appeal ground (a): the Deputy President erred in concluding that the dismissal of the appellant was not harsh, unjust or unreasonable

• [44] This ground of appeal challenges the ultimate conclusion drawn by the Deputy President.
• [45] In many statutes a judicial discretionary power arises upon the finding of particular facts (the jurisdictional fact). In those circumstances, it is well-established that the discretion may be attacked by criticising the conclusion that the jurisdictional fact is proved. However, once the jurisdictional fact is proved the exercise of discretion may only be reviewed on one of the grounds identified in House v The King,[21] namely:
  1. error of law;
  2. error of fact;
  3. taking into account an irrelevant consideration;
  4. failing to take into account a relevant consideration; and
  5. the decision is unreasonable in the sense that it is so unreasonable or plainly unjust that the discretion has miscarried even though specific error cannot be identified.
• [46] Some statutory provisions are structured differently so that there is no jurisdictional fact and a discretion but rather, the provision requires the court or tribunal to make a value judgment based on evidence to be assessed. Such a decision will only be upset on appeal where there has been an error of the type identified in House v The King.[22] The requirement in the IR Act that the QIRC considers whether the dismissal was "harsh, unjust or unreasonable" and therefore, "unfair" is such a value judgment.
• [47] Mr Lam seeks generally to rely on s 557(2) of the IR Act. He complains in grounds of appeal (a), (b) and (f) of conclusions which he says should not have been made. He does not point to any specific factual findings where error has occurred, except in the reply submissions to which I shall return.
• [48] In the main, the Deputy President has made factual findings based on his assessment of the witnesses as they gave evidence before him. Even if the appeal to this Court had been by way of rehearing (as that term is generally understood),[23] and it was necessary for this Court to draw its own inferences from the evidence,[24] an interference with factual findings based on an assessment of a witness's credibility or reliability will only occur where the findings are "glaringly improbable" or "contrary to compelling inferences".[25] There is nothing, in my view, to suggest that the Deputy President has made any such error in the assessment of the credibility or reliability of any of the witnesses.
• [49] However, in Mr Lam's reply submission, he submits that there should have been no findings of misconduct in relation to each of allegations 2 and 3. He makes that submission on properly particularised bases.
• [50] In relation to allegation 3, Mr Lam submits "... the Commission correctly assessed the definition of misconduct but erred in the application of that legal principle to incident 3". The point taken is that "misconduct" requires a deliberate departure from accepted standards, serious negligence to the point of indifference or an abuse of the privilege and confidence enjoyed by the relevant person.[26]
• [51] If a finding of misconduct is not legally open in relation to allegation 3, then an error of law has occurred.[27] If, on an assessment of the evidence by this Court, and taking into account the advantage enjoyed by the QIRC in seeing the witnesses give their evidence, I form the view that misconduct ought not to have been found, then there has been a factual error and subject to leave under s 557(2) of the IR Act, Mr Lam will have made out a ground of appeal.
• [52] Mr Lam points to the following aspects of allegation 3:
  1. The patient was aggressive.
  2. Mr Lam's contact with the patient was fleeting.
  3. There was genuine concern that the patient might spit at the PSOs.
  4. That Mr Jackson had said that the momentary infliction of pain upon a patient was sometimes appropriate. Therefore, the finding by the Deputy President that Mr Lam momentarily inflicted pain was not a finding of misconduct.
• [53] The Deputy President took into account the factual matters mentioned in 1 - 3 above. The assertion at 4 above misunderstands the Deputy President's reasoning.
• [54] At [109] of the judgment, the Deputy President referred to Mr Lam's evidence. The Deputy President described Mr Lam's evidence as:

" his[28] hold on the patient was not a compliance hold and that the patient was trying to spit on PSS Quinn;[29]

he was trying to stop the patient spitting on PSS Quinn and that PSS Quinn said he was concerned about the patient spitting on him;

when it was suggested that the PSOs that were present had pushed the patient's head towards the wall so that there was no risk of spitting, his response was that he ensured that the patient's face faced the wall but that he did not use any pressure;

a technique he had been taught to prevent a patient from spitting was to put a gas mask on the patient but that the PSO has to have time to do that;

he did not agree that, to stop a person spitting, he was taught to place their head down and walk the person out, however, he stated that it was not practical to put the patient's head down as his head would have hit the wall; and

he denied that what he did, in respect of this patient, escalated the patient or that his actions were inappropriate."

• [55] At paragraphs [110] to [112], the Deputy President referred to Mr Jackson's evidence. He said:

"[110] Mr Jackson's evidence-in-chief was that Mr Lam's actions, as seen in the body worn camera footage, was not consistent with a restraint used to prevent spitting by a patient.

[111] Mr Jackson's further evidence was that if the head is to be restrained, it is done from the front of the patient and not the rear and that to prevent spitting, PSOs are taught to bend the patient forward to limit their view or apply an oxygen mask.

from the body worn camera footage, Mr Lam appeared to be using a hypoglossal technique from behind the patient, using both hands, and that he did not understand why Mr Lam applied pressure to the patient's neck area from behind, yet told the patient to keep walking forward;

such a technique was inconsistent with Mr Lam's training because Mr Lam stated he was trying to assist the patient move forward but he was pulling the patient's head backwards; and

by Mr Lam using that technique, it further escalated the situation."

• [56] Therefore, the issue was not whether the momentary infliction of pain was inappropriate per se but whether it was inappropriate to prevent the patient spitting on the PSOs.[30] In that respect, the Deputy President explained:

"[115] It is true that the Security Incident Details report for this matter records that:

'Due to the patient's behaviour and him resisting PSO's had to steady themselves, and placed patient against the wall. PSS Quinn had the patients face facing him and Quinn believe that patient was about to spit in his direction. Quinn placed his hand against the side of the patients face to stop any attempt of the patient spitting at him.'

[116] However, Mr Jackson's evidence was that Mr Lam's actions were not consistent with restraint used to prevent spitting by patient. Further, Mr Jackson's evidence was that Mr Lam appeared to be using a hypoglossal technique from behind the patient.

[117] From what I viewed from Mr Lam's body worn camera footage, it did not appear to me that Mr Lam's conduct was an error of judgement or an innocent mistake. It appears to me that Mr Lam's conduct was deliberate and the way that he placed his left-hand fingers on the left side of the patient's head and had his thumb pressed on the back of the patient's head, although it was momentary, appeared to be for the purpose of inflicting pain on the patient to get him to comply with the direction for him to leave the Hospital.

[118] Furthermore, it does not appear to me that Mr Lam's conduct would have had the effect of preventing the patient from spitting at anyone. As set out above, it appears to me that Mr Lam's conduct was for the purposes of, momentarily, inflicting pain on the patient to get him to comply with the direction of the Health Service staff.

[119] For the reasons given above, I do not accept Mr Lam's explanation of his conduct in respect of Allegation three.

[120] In my view, the body worn camera footage together with Mr Jackson's evidence, proves on the balance of probabilities that Mr Lam engaged in inappropriate conduct in an official capacity and, specifically, his conduct was a deliberate departure from the accepted standards required by the Health Service in respect of use of force. The way Mr Lam applied that force was inconsistent with his training and what was required by the Health Service."

• [57] A similar point was raised in the reply submissions in relation to allegation 2. Again, Mr Lam relies upon Mr Jackson's evidence that a momentary infliction of pain may be an appropriate measure. However, the Deputy President found Mr Lam's actions to have been inappropriate:

"[96] Secondly, I accept Mr Jackson's evidence that Mr Lam was applying a pain compliance technique, which Mr Jackson refers to as the 'mandibular angle pain compliance technique'. This is because, on my viewing of the body worn camera footage, Mr Lam was not using a flat hand when his left hand came in contact with the right side of the patient's face but was placing his thumb under the patient's jaw near where it met the patient's neck, near the back of the head and he had his fingers curled and placed on the side and back of the patient's head. That is to say, from what I saw on the body worn camera footage, the contact by Mr Lam with the patient's head seemed to be consistent with Mr Jackson's description of the mandibular angle pain compliance technique and he was not using his hand, being placed flat on the patient's face, to try to push the patient's face forward away from him."

"[98] Fourthly, I accept Mr Jackson's evidence that when the patient was outside of the Hospital in the car park area, because the patient was being restrained, on either side, by other PSOs, there was no need for Mr Lam to apply any compliance technique. Even without Mr Jackson's evidence, from my viewing of the body worn camera footage, there did not appear to me to be any reason for Mr Lam's contact with the patient. There is no audio or video evidence that the patient was threatening or appeared to be about to spit on Mr Lam or any other person present."

"[100] Again, I cannot conclude that Mr Lam's conduct in respect of the use of his left hand, on the three times he came in contact with the right side of the patient's head, was mere negligence, an error of judgement or an innocent mistake. It appears to me that Mr Lam's conduct, in respect of his contact by his left hand, with the patient's head, was deliberate."

• [58] Also in his reply submissions, and seemingly in support of ground (a), Mr Lam criticised the reasons given for the termination decision made on 29 January 2019 and criticises actions taken by the Health Service leading up to Mr Lam's dismissal. All that is of little moment. The Deputy President was required to receive all the evidence and decide himself whether the termination was unfair. He did so.
• [59] Also in his reply submissions, Mr Lam made the point that he was not warned about his conduct at any time until all four incidents had occurred. Therefore, it was submitted, he had in effect been let down by management.
• [60] The Deputy President, though, understood this and took it into account in his assessment. He observed:

"[158] While there is no evidence that Mr Lam, prior to the incidents the subject of Allegations one, two and three, was advised by his managers that the level of force he was using was inappropriate, it is the case that Mr Lam had been trained in the appropriate use of force. For the same reasons I give below concerning the fact Mr Lam was not warned about his conduct prior to his dismissal and in respect of his claim his dismissal was disproportionate to his conduct, I do not consider that lack of advice by his managers renders his dismissal harsh, unjust or unreasonable."

"[162] It is the case that Mr Lam, prior to his dismissal, was not warned about his conduct."

"[164] The lack of any warning to Mr Lam is a relevant consideration as to whether his dismissal was harsh, unjust or unreasonable. However, in my view it is not determinative. There are two reasons for this.

[165] First, Mr Lam was an experienced PSO employed by the Health Service. Mr Jackson's evidence was that Mr Lam undertook a five day intensive Aggressive Behaviour Management ('ABM') training course when he commenced in February 2014 and attended regular one-day ABM refresher courses on 5 June 2014, 18 June 2015, and 9 December 2016 and most recently on 7 March 2018.

[166] Secondly, it seems to me, having regard to the regular training Mr Lam received, that the conduct in which Mr Lam engaged was so inconsistent with his training and the Health Service's expectations of his conduct as a PSO, that the fact that he was not warned about his conduct does not, on its own, mean that his dismissal was harsh, unjust or unreasonable."

• [61] There is no error in that approach.
• [62] None of the specific complaints raised in challenge of the ultimate conclusion reached by the Deputy President are made out and ground (a) fails.

Appeal ground (b): The Deputy President erred by finding, contrary to the evidence, that the appellant had engaged in the misconduct as alleged against him

• [63] The Deputy President did not err in law in finding misconduct. There was a solid evidentiary basis upon which he could make that finding. The body cam footage showed what Mr Lam did. Acceptance of the expert evidence of Mr Jackson provided a basis upon which Mr Lam could have been found to have acted deliberately inappropriately.
• [64] The Deputy President's findings were based essentially upon a rejection of the evidence of Mr Lam and the acceptance of the evidence of Mr Jackson. Even if Mr Lam obtained leave to raise an appeal on an error of fact, he would be faced with the credit findings made against him. Having regard to the advantage which the Deputy President held as having seen and heard the witnesses, I can see no basis upon which I would draw factual conclusions different to that of the Deputy President.
• [65] Ground (b) fails.

Appeal ground (c): The Deputy President erred in giving improper weight to the evidence of Mr Matthew Jackson

• [66] Mr Lam, in his second affidavit,[31] pointed out that Mr Jackson was an employee of the Health Service and asserted that he was not "an impartial subject matter expert". However, no challenge was made to Mr Jackson's expertise and no objection was raised in the QIRC to the admission of his evidence. The fact that Mr Jackson is employed by the Health Service does not render his evidence partisan so that he does not qualify to give independent expert evidence.[32]
• [67] Mr Harding's cross-examination of Mr Jackson was, in my view, well planned and executed. He began by extracting admissions that while Mr Jackson had trained Mr Lam, he did not speak to him before expressing his opinion in the current case. He got from Mr Jackson that Mr Lam had not struggled in his training and he made the point that theoretical training is often quite divorced from an actual, and often very stressful, situation in the workplace where a patient had to be controlled by physical restraint.
• [68] Mr Harding then cross-examined Mr Jackson by reference to his affidavit and the body cam footage which he played to him. He drew Mr Jackson's attention to the actions of another PSO who was not criticised.
• [69] Although, in my view, Mr Harding handled Mr Jackson's evidence well, he did not put to him that he had coloured his evidence to favour the Health Service. Apart from the fact that Mr Jackson was employed by the Health Service, there is nothing that would have supported such a suggestion. Mr Jackson's affidavit, at least on its face, showed well-considered opinions. In the absence of some expert evidence to contradict Mr Jackson, a suggestion of bias would have been fraught with forensic risk.
• [70] The Deputy President heard evidence from both Mr Jackson and Mr Lam and preferred the evidence of Mr Jackson. There is no demonstrated basis to upset the findings based on Mr Jackson's evidence.
• [71] This ground of appeal fails.

Appeal ground (d): The Deputy President denied the appellant natural justice and procedural fairness and erred at law by allowing into evidence footage which had not been disclosed to the applicant prior to the hearing and which was not relevant to matters in issue in the proceeding

• [72] It was initially unclear to me what footage was allegedly not disclosed prior to the hearing. In Mr Jackson's affidavit, he refers to: "Copies of BWC footage are attached and marked as MJ-4 (available on request)".[33]
• [73] In Mr Lam's second affidavit, he says this:

"(e) The footage does not show any patients or staff members at risk of injury or who were injured due to my conduct ..."[34]

"... It clearly shows in the footage that PSS Spencer twisted the patient's left wrist and applied pressure to cause pain to the patient. ..."[35]

• [74] At least by the time Mr Lam swore his second affidavit he had seen the footage of the four incidents.
• [75] When the matter came before me, Mr Lam explained that the footage to which he was referred in cross-examination was not footage of the four incidents the subject of the dismissal. A second show cause notice had been given to Mr Lam concerning other incidents which post-dated the four relevant ones. Those later incidents were also recorded on body cam.
• [76] When this footage was raised in cross-examination, Mr Lam asserted that he had never seen it and it wasn't relevant to the dismissal. Mr Brown for the Health Service submitted to the Deputy President that it was relevant to reinstatement[36] if unfair dismissal was found.
• [77] This seems consistent with what Mr Brown said in his first affidavit.[37]
• [78] Mr Lam knew, or should have known, that the subject matter of the second show cause was a live issue in the reinstatement application. It is referred to in Mr Brown's affidavit and disclosure of the relevant footage had been made.
• [79] In any event, Mr Lam was shown the footage but said he couldn't comment. The Deputy President has not referred to the footage in his judgment except to observe that he need not consider it.[38]
• [80] No unfairness has been inflicted upon Mr Lam and this ground fails.

Appeal ground (e): The Deputy President denied the appellant natural justice and procedural fairness and erred at law while allowing Mr Brown to give evidence after acting as advocate for the respondent and after having heard the entirety of the evidence led in the case

• [81] Mr Brown should not have appeared as advocate for the Health Service. He had been involved in the investigation into the conduct of Mr Lam. He apparently made decisions about that investigation. Indeed, he was the person who recommended that the investigation be commenced.[39] In due course, he judged the investigation to have been properly conducted.[40] He was involved in making recommendations to Ms Hudson. He made value judgments and expressed adverse opinions about Mr Lam's conduct. He swore an affidavit where he criticised what Mr Lam had said in his affidavit.
• [82] It is well-recognised that advocates appearing in an adversarial situation ought, to the best extent possible, be independent.[41] It is not an answer to that proposition to say that lay people often represent themselves. Depending upon the complexity of the matter, that is often, frankly, undesirable.
• [83] Mr Brown had strongly advocated against Mr Lam in the investigation process and he was a substantial part of the process which resulted in Mr Lam's dismissal. He then swore affidavits in support of the complaints against Mr Lam and was a witness in the case. He was making submissions in a case where, as a witness his credit may have been put in issue. That Mr Brown, a person in an obviously fairly senior position, did not see the inappropriateness of him appearing as advocate in the QIRC is very concerning.
• [84] However, the question is whether some error of law or want of jurisdiction is shown.
• [85] The Deputy President raised the issue of Mr Brown being both advocate and witness early in the proceedings. This exchange occurred:

"DEPUTY PRESIDENT: So if you could just have a look at that. Look, the other thing is, Mr Brown, you're appearing for the Health Service in the case, but you're also a witness in the case as well.

MR BROWN: Well, I -well, Mr Harding and I haven't explored that in detail. I mean, I'll obviously run the matter through. Our thoughts around this matter is that I be called last - - -

MR BROWN: And then I take, obviously, the witness stand and I'll ask Ms Curry or somebody else to -you know, to ask any-you know, any questions at the end of my cross-examination, Commissioner.

DEPUTY PRESIDENT: It's just very unusual for an advocate to be a witness in the case. It's - the difficulty is, is that, you know, you might hear evidence when Mr Lam is giving his evidence or you might hear questions in cross-examination and then, when you come to give your evidence -you know, I'm not saying that you do, but there's always that [indistinct] you know, about evidence being changed and things like that.

MR BROWN: I understand. I mean, obviously, Commissioner, you know, we're running the matter.

DEPUTY PRESIDENT: All right. Well, have just-we'll adjourn for 10 minutes and you can have a look at that. And, also, if you can agree between yourselves as to Mr Brown's situation here today-position today, if- you know, if you can come to a consent position about that. If you do, you know, it might not be likely that I'd take into account any later submission, you know, that Mr Brown's evidence has changed or anything like that because of what he has heard, because we're here ready to go to start today. So if you can just both have a chat amongst yourselves about that and we'll come back in about 10 minutes." (emphasis added)

All right then. In terms of the other matters, the other issue about Mr Brown, what do you say, Mr Harding?

MR HARDING: Deputy President, our view is that we're here. We'd like to just press on.

MR HARDING: And where issues arise tomorrow, if they do, we'll deal with them then, but - -

MR HARDING: - - - that's the view that we've taken.

DEPUTY PRESIDENT: Well, just keep in mind that might make it difficult for you to make

DEPUTY PRESIDENT: - - - you know, any submissions, you know, that I mentioned before, but all right then. No worries at all. Are there any other preliminary matters, gentlemen, that we have to deal with before we kick off?" (emphasis added)

• [86] Mr Brown's response to the issue that it was unfortunate is somewhat mystifying. Mr Brown was not appearing by accident. Obviously a deliberate choice had been made for the Health Service to be represented in the QIRC by Mr Brown, notwithstanding that Mr Brown was intricately involved in the dismissal of Mr Lam and was a witness in the proceedings. As already observed, that was a serious error of judgment by Mr Brown.
• [87] However, Mr Harding made a forensic decision to press on with the proceeding. He did not seek an adjournment and he did not seek the exclusion of Mr Brown's evidence. Therefore, it cannot be said that any error of law was committed by the Deputy President. He took no action but he was not asked to take any.
• [88] Mr Harding's forensic decision not to object to Mr Brown representing the Health Service was probably the correct one. Despite Mr Brown's very serious criticism of Mr Lam, it appears that his evidence had little, if any, effect upon the result. The Deputy President no doubt appreciated that Mr Brown's opinions, not matter how vehemently put, were all but irrelevant. What was important was not Mr Brown's assessment, but Deputy President Merrell's.
• [89] In considering each of the allegations 1 to 3, the Deputy President concentrated mainly on the evidence of Mr Lam and the evidence of Mr Jackson. Given that the incidents were all caught on body cam footage, the real issue was whether the conduct of Mr Lam was appropriate. That was always going to be decided on a contest between Mr Lam's explanation as to why he took the action he did and Mr Jackson's expert evidence as to its inappropriateness. Mr Harding obviously appreciated that and, as observed earlier, he conducted a thorough cross-examination of Mr Jackson.
• [90] Mr Brown's error of judgment, while serious, did not cause the hearing in the QIRC to miscarry. This ground of appeal is not made out.

Appeal ground (f): The Deputy President erred in law so far as he found that witnesses called on behalf of the respondent were witnesses of credit and/or that the applicant was not a witness of credit

• [91] As already observed, the appeal to the Court is an appeal on an error of law or want of jurisdiction. There was clearly an evidentiary basis for each of the findings made by the Deputy President. It was for the Deputy President to hear the witnesses and make decisions about credit and reliability.
• [92] No error of law or fact is shown in his assessment of the witnesses.

• [93] Mr Lam has not made out any of his grounds of appeal and the appeal must be dismissed.
• [94] I order that the appeal is dismissed.

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

[2] Of Ashdale Workplace Solutions; a firm independent to the Health Service.

[3] Hospital and Health Board Act 2011, Part 9.

[4] Also known as Matthew David Waldron.

[6] Reference to the Clinical Team Coordinator, Ms Cognet.

[7] A ground for discipline under s 187(1)(b) of the Public Service Act 2008.

[8] A ground for discipline under s 187(1)(g) of the Public Service Act 2008.

[9] The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 67 at [27]- [36].

[10] The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 67 at [38]- [46].

[11] Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR 336.

[12] A draft letter of recommendation that Mr Lam be dismissed.

[13] Who swore an affidavit filed with the reinstatement application.

[14] Decision, paragraphs [137]-[158].

[15] Decision, paragraphs [159]-[190].

[21] (1936) 55 CLR 499 at 504, 505.

[22] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513.

[23] See the classic analysis by Glass JA in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348.

[24] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306.

[25] Fox v Percy (2003) 214 CLR 118 at [25], Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43] and Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993 at [55].

[26] Mathieu v Higgins [2008] QSC 209 and see the Deputy President's decision at [31].

[27] R v R (1989) 18 NSWLR 74 at 77.

[29] Another Health Service employee involved in subduing the patient. "PSS" means "Protective Services Supervisor".

[31] Sworn 11 September 2019; see paragraph [15].

[32] Li v The Queen [2003] NSWCCA 290; (2003) 139 A Crim R 281 at [71], FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [15] and Wood v R [2012] NSWCCA 21; (2012 84 NSWLR 581 at [728].

[36] Public Service Act 2016, s 188A.

[37] Sworn 19 August 2019, paragraph 74.

[41] Barristers Conduct Rule 2018, r 141. Barristers are, of course, professional advocates.