Purcell v The Health Secretary on behalf of NSW Ambulance

Mr A McLeod of counsel (Respondent) File Number(s): 2020/00160408

DECISION

1. At the time of the events that gave rise to this appeal, Eamonn Purcell, the appellant, was employed for the purpose of proceedings before this Commission, by the Health Secretary on behalf of NSW Ambulance, the respondent, in the role of Duty Operations Manager in the Murrumbidgee Zone, with responsibility for the Wagga Wagga Ambulance Station and other ambulance stations in this area. The appellant was promoted to this position in 2003, having commenced employment with the respondent in 1996 and having been promoted to the rank of Station Officer at the Wagga Wagga Ambulance Station in 1999.
2. By letter dated 16 December 2019 from Tony Gately, Director Clinical Operations (Sectors), the appellant was advised of the following allegations which had been made against him by Paramedic Timothy Scott-Young of the Wagga Wagga Ambulance Station: 1. On 21 November 2019 while in the administration area of Wagga Wagga Hospital you failed to act in a way that promotes harmonious and productive working relationships and a collaborative teamwork approach in breach of section 4.1.2 of the Code of Conduct PD2015_049. Particulars: You made unnecessary and deliberate physical contact with Paramedic Timothy Scott-Young by walking into him and bumping the back of his head whilst he was seated. 2. On 28 November 2019, while in a corridor of Wagga Wagga ambulance station, you failed to act in a way that promotes harmonious and productive working relationships and a collaborative teamwork approach in breach of section 4.1.2 of the Code of Conduct PD2015_049. Particulars: You approached Paramedic Timothy Scott-Young and made unnecessary and deliberate physical contact with Paramedic Timothy Scott-Young by dropping your shoulder and making contact with your right arm into his right arm near his abdomen area while walking past him. You then said "I'm sorry Tim" in a joking and belittling manner.
3. Section 4.1.2 of the respondent's Code of Conduct is in the following terms: 4.1 Promote a positive work environment Staff must: ………….. 4.1.2 Treat all other members of staff (irrespective of whether they are at the same level of seniority, or more senior or junior) in a way that promotes harmonious and productive working relationships, and a collaborative teamwork approach.
4. The 16 December 2019 letter from Mr Gately had attached to it a "Facts Sheet" in which it was stated, amongst other things: You then sat in a chair next to Paramedic Scott-Young and pushed your chair repeatedly into his chair. You glared at Paramedic Scott-Young in an angry manner and then asked Paramedic Scott Young to move over, to which he obliged.
5. The appellant was stood down from his position as a Duty Operations Manager and placed on alternate duties on base pay with effect from 16 December 2019.
6. On 10 January 2020, the appellant provided Mr Gately with a detailed response to the two allegations. With respect to Allegation 1, the appellant stated that, from his recollection he did not make physical contact with Mr Scott-Young on that occasion. The appellant also stated that he did not push his chair repeatedly into Mr Scott-Young's chair nor glare at him in an angry manner. In relation to Allegation 2, the appellant denied that he veered towards Mr Scott-Young or dropped his shoulder. He stated that he brushed past Mr Scott-Young in the corridor of the ambulance station and immediately apologised, but not in a jovial and/or belittling manner.
7. An investigation into the two allegations was conducted by Trevor Cheung, Senior Investigation Officer, Professional Standards Unit, NSW Ambulance. In his investigation report, which was finalised on 5 March 2020, Mr Cheung found that neither allegation was substantiated due to insufficient or inconclusive information. However, he was persuaded that the appellant did hit Mr Scott-Young's chair with a chair repeatedly, but he was unable to conclude that the appellant's conduct met the "requisite level of seriousness". Mr Cheung described the appellant's conduct as "unprofessional and of a lower level of severity".
8. By letter to the appellant dated 12 March 2020, Mr Gately reframed Allegation 1 against the appellant as follows: 1. On 21 November 2019 while in the administration area of Wagga Wagga Hospital you failed to act in a way that promotes harmonious and productive working relationships and a collaborative teamwork approach in breach of section 4.1.2 of the Code of Conduct PD2016- 007. Particulars: (a) You made unnecessary and deliberate physical contact with Paramedic Timothy Scott-Young by walking into him and bumping the back of his head whilst he was seated; (b) You used a chair to deliberately and repeatedly hit a chair occupied by Paramedic Timothy Scott-Young.
9. The appellant was offered the opportunity to provide a further written response which he did on 23 March. In his response, the appellant denied that he used a chair or any part of his body to make contact with Mr Scott-Young's chair.
10. On 17 April 2020, Mr Gately provided the appellant with his "Preliminary decision regarding Misconduct Allegations" in the following terms: I have considered the initial review report together with advice provided by the Professional Conduct and Integrity. I have made the following findings: Allegation 1(a): Not substantiated Allegation 1(b): Substantiated Allegation 2: Not substantiated I further find that the substantiated allegation 1(b) amounts to misconduct under the Managing Misconduct Policy Directive PD2018-030 ("Managing Misconduct Policy").
11. On 28 April 2020, the appellant provided Mr Gately with a lengthy and detailed response to Mr Gately's preliminary finding in which the appellant again denied Allegation 1(b).
12. By letter to the appellant dated 17 April 2020, Mr Gately provided the appellant with his "Final Misconduct Decision - Disciplinary and Remedial Action". In that correspondence, Mr Gately confirmed his preliminary decision and advised the appellant of the disciplinary and remedial action to be taken in the following terms: Reduction in Classification I confirm that you are subject to the disciplinary action as follows: Temporary reduction in Classification (Paramedic Specialist/ Team Leader) You are subject to a temporary reduction in classification for a total period of 12 months. During this time you will maintain your current pay grade. Your classification will be reduced to Paramedic Specialist for an initial period of 3 months excluding periods of leave. During this time, you are to wear the rank of Paramedic Specialist and you are not to act in a position of managing staff. Subject to satisfactory performance during the initial 3-month period, you will then commence as Station Officer for a period of 9 months. During this time, you are to wear the rank of Station Officer. Your management responsibilities during this time will be subject to assessment as per Performance Improvement Program discussed below. Performance Improvement Plan I confirm that you are subject to the following remedial action: Performance Improvement Program for a period of 12 months (excluding periods of leave) The Performance Improvement Program will address the periods of your temporary reduction as outlined above. The Performance Improvement Program is to be developed by the Executive Director, People and Culture or her delegate.
13. It is from this decision, and the disciplinary and remedial action outlined above, that the appellant has appealed to this Commission.

Background

1. Evidence was given by a number of witnesses about the "toxic" workplace culture that existed at the Wagga Wagga Ambulance Station. It appears that there were two opposing "camps" of employees. One camp included Station Officers Darren Rudd and Adam Horsley as well as Mr Scott-Young. The appellant was seen to be in the other camp.
2. Duty Operations Manager Julieann Exton, who was called as a witness in the proceedings by the appellant, described the workplace culture at the station in the following terms: 14. Over several years, the culture of Wagga station had been declining. Due in part to the following issues I directly witnessed at Wagga Wagga Station. 15. There was repeated belittling and condescending behaviour by SO Adam Horsley towards me and other officers I worked with. I have experienced this on cases where I had required to request clinical back up. 16. Darren Rudd and Adam Horsley would arrange social activities which actively excluded a group of people but would ensure that those excluded would be aware of this. They did this by way of open conversations in the meal room or by utilizing social media. An example of this was when they organized their own Christmas Party on the same day as the one organized by the staff at Wagga. A select group of people were invited. 17. I felt that Tim Scott-Young colluded with the Station Officers and appeared to me to be treated differently to others. It was noticed by me and commented on by other staff that Tim Scott­Young and others who were friends with Adam Horsley and Darren Rudd would get preferential treatment with rosters, annual leave allocations and requested days off. 18. Adam Horsley would often not acknowledge me when on station together. At times when he chose to talk to me he would corner me to discuss his thoughts on being a 'Team Leader' and how he felt that the role that they had was not just to do station duties but as a mentor to staff. He also felt that his role was to provide a more clinical support role to staff and that he felt that the administrative tasks were for the DOM, like they did in Sydney. In these discussions he would not accept that I did not agree with him. He would continue to repeat his thoughts and if I continued to disagree with his point of view, he would become agitated and almost to the point of irritation and at times, anger. 19. It appeared to me that his thoughts that the DOM should perform the administrative tasks resulted in the Station Officers not doing the tasks that staff expected of them by the staff, such as dealing with annual leave applications, ordering stores, timesheets, ensuring car checks were done and the general overseeing of station duties that were expected of them by staff. 20. I believe this lead to these specific station officers having a negative view of what I understood to be any reasonable managerial direction issued to them by their superiors, specifically DOMs. 21. Due to these behaviours the culture of the station deteriorated. There was a lack of trust and confidence in both Adam Horsley and Darren Rudd. It was felt that they had favourite staff who got treated differently to another select group. 22. I attended a session to discuss my concerns with Lisa Coltart from NSW Ambulance (NSWA) Healthy Workplace strategies. Following this there was what could be termed an "intervention" by NSWA where we were subjected to a talk by the Executive Team who attended Wagga station. From that meeting I took away the thought that the concerns voiced by staff would be dealt with and the station would be a better place to work. What I observed was that the behaviours of the station officers did not appear to change despite whatever 'intervention' was initiated. 23. I believe the source of the toxic culture at Wagga Wagga was based largely in the inappropriate actions of the Station Officers, and the staff group of which Tim-Scott Young, amongst others, was a member. I do not believe the source of the negative workplace culture stemmed from any other parties at the station.

The investigation report

1. The investigation report prepared by Mr Cheung and dated 5 March 2020 contained the following (footnotes omitted): 7 Analysis of Evidence Allegation 1: Incident at Wagga Wagga Hospital 7.1 The evidence in support of this allegation is from Mr Horsley and Mr Scott-Young. Mr Purcell's evidence does not recall making contact with Mr Scott-Young, he denies deliberately doing so. Accordingly the critical issue in the Investigator's mind is if contact had been made by Mr Purcell as he made his way past Mr Scott-Young was whether the contact was unnecessary and deliberate. 7.2 The Investigator views that no inferences can be drawn from the physical dimensions of the room itself to suggest that any such contact would have been unnecessary and deliberate due to the fact of physical contact occurring. A review of the photograph of the ambulance administration area suggests it is a fairly confined space, and particularly so when taking into account the presence of several office chairs and the physical presence and positioning of Mr Purcell and Mr Scott-Young. It is plausible that unintentional contact could be made in circumstances where two people are physically negotiating past one another. 7.3 In his statement, Mr Horsley directly observed that Mr Purcell "stepped into" Mr Scott-Young while seated and "physical contact[ed]" him as he walked past. His evidence suggests that the contact was deliberate as Mr Purcell glared angrily at Tim around the same time. He also viewed there was sufficient space for Mr Purcell to avoid Mr Scott-Young. 7.4 However it is noted that according to Ms Huggins' notes of Mr Horsley's initial report of the hospital incident, Mr Horsley does not mention Mr Purcell walking into Mr Scott-Young. While being mindful of the hearsay nature of Ms Huggins' notes, the Investigator views these notes are contemporaneous, and are detailed - containing elements consistent with Mr Horsley's statement. This suggests that they are likely an accurate account of Mr Horsley's evidence. Therefore the absence of a report of physical contact in this nature suggests that, if it had in fact occurred, it was not significant in Mr Horsley's mind at the time. 7.5 Mr Scott-Young's evidence is that he felt several bumps to the back of his head. He states that the contact was from Mr Purcell as no-one else was behind him at the time and surmises that it was possibly from Mr Purcell's hip/leg region. Notably Mr Scott-Young reports to Ms Huggins in his initial report to her that Mr Purcell "deliberately pushed into him with his thigh". 7.6 However, due to Mr Scott-Young's body positioning and the fact that contact is made with the back of his head, it is evident that Mr Scott-Young does not see Mr Purcell when he makes contact with him. The deliberateness of the contact is inferred from Mr Purcell's subsequent behaviour, which is consistent with Mr Purcell wanting to physically move Mr Scott-Young in an inappropriate and unprofessional manner. 7.7 The Investigator notes that while Mr Carter's evidence initially supported the fact that Mr Purcell shoved Mr Scott-Young to indicate he could not get past despite there being plenty of room, his subsequent evidence was that he only recalls contact being made after Mr Purcell was seated. As such Mr Carter's evidence to this extent is ignored. 7.8 Mr Purcell's evidence differs markedly from Mr Scott-Young and Mr Horsley. He gives evidence that he avoided making contact with Mr Scott-Young by asking Mr Scott-Young twice to move and then subsequently moving office chairs to gain access. 7.9 Accordingly, the Investigator does not view that there is sufficient evidence on the balance of probabilities to suggest that Mr Purcell made unnecessary and deliberate physical contact to Mr Scott-Young by walking into him and bumping the back of his head whilst he was seated. 7.10 The Investigator notes that immediately after Mr Purcell walked past Mr Scott-Young, it is alleged that Mr Purcell deliberately and repeatedly hit a chair into the chair occupied by Paramedic Timothy Scott-Young. Relevantly, the investigator views that such conduct forms part of a continuum of alleged behaviour of Mr Purcell set out in Allegation 1. 7.11 The evidence of Mr Carter was particularly considered by the Investigator who provides the most detailed account of Mr Purcell's behaviour in this regard. Specifically Mr Carter witnessed Mr Purcell use the front of a vacant chair to ram the side of Mr Scott-Young's chair four or five times with increasing force. This occurred once Mr Purcell had sat down. 7.12 Mr Carter describes Mr Purcell using increasing force with each hit which gave the impression to Mr Carter that it was inappropriate. He noted that the force of the hits was sufficient to move Mr Scott-Young down the bench. Mr Carter's evidence was that Mr Purcell stated "Get out of the road" at the same time and his face appeared "sour or cranky" which would both suggest that the action was intentional. 7.13 There is a disparity between Mr Carter's first and second statement to the extent that he does not mention Mr Purcell using a chair when "violently shoving" in the first statement, but does so in the second statement. While this is not an insignificant change, the Investigator does not draw any adverse inference as to the reliability of Mr Carter's evidence from this clarification. The clarification does not change the severity of the alleged behaviour. Mr Smith is not engaged with NSW Ambulance and unlike Mr Scott-Young and Mr Horsley, does not know Mr Purcell. As such the Investigator placed weight on Mr Carter's evidence as important being an independent person. 7.14 Mr Horsley's evidence in his statement was that Mr Purcell repeatedly "pushed" the chair next to him against Mr Scott-Young's chair. Importantly, this is corroborated in his initial report to Ms Huggins. Mr Horsley also gives evidence of Mr Purcell giving an angry glare at the time to Mr Scott-Young which would suggest that he conduct was intentional. Mr Horsley also states that immediately after the hits, Mr Purcell requests Mr Scott-Young to move to make room for Mr Sutton. It is noted that Mr Horsley describes the force of the contact in both his statement and an initial report as a "push". 7.15 Mr Scott-Young also gives evidence in his statement that he received several hits of the rear of his chair from Mr Purcell's chair which was quickly followed by a request to move down. Given Mr Scott-Young's position at the time it is presumed that Mr Scott-Young's evidence is based on what he felt rather than what he saw. This may explain the disparity in his evidence that Mr Purcell used his chair, and not another chair. Mr Scott-Young's statement corroborates and provides further detail to his initial report to Ms Huggins. 7.16 Mr Sutton does not observe any relevant occurrence as he appears to arrive after the relevant timeframe. He does note that Mr Purcell requested Mr Scott-Young to move several times and that Mr Scott-Young eventually did so. 7.17 Mr Purcell denies that he hit Mr Scott-Young's chair and in fact suggests that Mr Scott-Young pushed his chair into his chair once he had sat down. At interview, Mr Purcell stated that while he felt bewildered at the time, he did not do anything in response as he felt apprehensive as to how Mr Scott-Young would react particularly in a public space. It is noted that there is a history of tension between Mr Scott-Young and Mr Purcell, including the instances in which Mr Scott­Young has responded aggressively as evidenced in file notes of prior incidents provided by Mr Purcell. 7.18 While Mr Scott-Young's evidence is understandable, in considering the totality of all the evidence, the Investigator is persuaded on balance by the evidence of Mr Carter, Mr Horsley and Mr Scott-Young that Mr Purcell did in fact hit Mr Tim Scott-Young's chair with a chair repeatedly. Mr Purcell's request to Mr Scott-Young to move immediately after hitting the chair, evident from each of the three witnesses, suggests that it was related to the conduct and therefore intentional on the part of Mr Purcell. 7.19 It is noted that there are various descriptions used to describe the force employed by Mr Purcell in hitting Mr Scott-Young's chair - from "pushed", "hitting" and "ramming". Only Mr Carter gives evidence that the force was sufficient to move Mr Scott-Young down the desk, while Mr Horsley and Mr Scott-Young do not give such evidence. The common element however is that the actions were repeated which would suggest several separate movements of the chair back and forth to make contact with Mr Scott-Young's chair. Having regard to the overall weight of the evidence, the Investigator views on balance that the force was likely to be at the lower end of the scale but nevertheless sufficient to be described as "hitting" in accordance with the particulars. 7.20 It is self-evident that Mr Purcell in engaging in these physical aggressive actions against Mr Scott-Young is incompatible in promoting harmonious and productive working relationship or a collaborative team approach. It was an unnecessary and unprofessional reaction which is likely to have ramifications of his working relationship with not only Mr Scott-Young, but also Mr Horsley and Mr Carter who were in attendance. Accordingly, the Investigator is satisfied that Mr Purcell breached section 4.1.2 of the Code of Conduct PD2016-007. 7.21 In order for breaches of the Code of Conduct to meet the threshold of misconduct in accordance with Section 1.2 of the Managing Misconduct Policy, the behaviour or conduct must seriously or repeatedly breach the standards expected under the Code. 7.22 The Investigator notes that the while the Code of Conduct is mandatory for all NSW Health staff, section 1.1 of the Code of Conduct sets out a higher standard of behaviour expected of managers. It provides: "Managers have a key role in ensuring staff understand the Code and in enforcing the standards it sets, consistently and fairly. However, the most important responsibility of managers, and their most valuable contribution to ensuring that the standards set out by the Code are implemented, is to lead by example." 7.23 This is applicable to Mr Purcell whom, as Duty Operations Manager has a heightened responsibility to set a good example for his staff, including Mr Scott-Young and Mr Horsley, as well as external stakeholders such as Mr Carter. 7.24 However, the Investigator finds that considering all of the above, he is unable to conclude that Mr Purcell's conduct met the requisite level of seriousness. Specifically, the nature of the physicality is best described as unprofessional and of a lower level of severity. Mr Scott-Young was not touched by the chair and does not complain of any physical injury or significant physical discomfort arising from the incident. 7.25 It is noted that Mr Scott-Young does give evidence that the incident did cause him distress, and the Investigator does not doubt that this reaction was genuine. However, it is noted that Mr Scott-Young did not report the matter until after the occurrence of the incident, subject of Allegation 2. He indicates his reasoning of not confronting Mr Purcell at the time was due to previous negative experiences of confrontation he had with him. However it is presumed that Mr Scott-Young had sufficient opportunity to report the matter earlier to another manager should he have thought the conduct in itself was warranted. 7.26 In conclusion, the Investigator finds that Allegation 1 is not substantiated for the reasons that: • There is insufficient evidence to suggest that Mr Purcell made deliberate contact with Mr Tim Scott-Young as he walked past him; and • The contact made by Mr Purcell by use of a chair, while unnecessary and deliberate, was not sufficiently serious to meet the threshold of misconduct. Allegation 2: Incident at Wagga Wagga Ambulance Station 7.27 It is common ground that the background to the incident was Mr Scott-Young raising concerns regarding staffing levels at Wagga Wagga station that impacted on the rescue training day occurring that day. Mr Scott Young indicated he raised the matter with Ms Exton, who in turn discussed it with Mr Purcell. On the other hand, Mr Purcell advised that Mr Scott-Young raised the issue with him directly. He advised that queries about staffing levels is a common question he receives from paramedics. 7.28 The Investigator is unable to conclude that this conversation was the catalyst for the subsequent contact. There is no other indicia to suggest that Mr Purcell was upset with Mr Scott-Young at the time. The absence of the relief crew from Tumut was a factual matter that needed correction. While Mr Purcell was not on duty at the time, it appeared that he took it upon himself to assist in rectifying the matter. 7.29 The dimensions of the corridor as depicted in the photographs suggest that it is of a "standard" width and do not in themselves lend to any inferences being drawn about the deliberateness of the contact. In the Investigator's view, it is conceivable that incidental contact may have occurred from two people are passing each other where they are occupying opposite sides of the corridor. 7.30 Both the accounts provided by Mr Scott-Young and Mr Purcell agree that contact in the hallway occurred, that Mr Purcell moved his shoulder forward (albeit for different reasons) and that Mr Purcell's shoulder made contact with Mr Scott-Young's upper arm. However the accounts differ markedly as to whether Mr Purcell veered into Mr Scott-Young and the force involved. There is also disparity in the tone used by Mr Purcell in apologising to Mr Scott-Young. 7.31 The Investigator is minded of the evidence of Ms Exton's statement, whom at the time was several meters behind Mr Purcell and would have had a clear view of the incident. Her evidence suggests that the contact was incidental as she did not realise it occurred until Mr Purcell started apologising to Mr Scott-Young. 7.32 It is noted that Mr Scott-Young in his statement contends that Ms Exton was not relevantly in the corridor at the time and was situated in the computer room, which is located off the corridor and close to the reception area. However, Ms Exton's evidence is that she was located just outside the reception area within the corridor. The Investigator has difficulty in reconciling this disparity, although notes that it is possible that Mr Scott-Young's view of Ms Exton was impaired by Mr Purcell as he approached or that he was otherwise mistaken. 7.33 Mr Horsley gives evidence that Ms Exton that she behaved inappropriately after the incident occurred and was also condescending towards Mr Scott-Young when offering him support. The Investigator has not formed an opinion as to the accuracy of this information, and views that irrespective of it, it does not support an argument that Ms Exton's evidence was entirely invented. In particular, the Investigator notes that Ms Exton's file note provided to Ms Huggins in the following day of the incident is consistent with the account provided to the Investigator. 7.34 In consideration of all the relevant factors, the Investigator is unable to conclude on the balance of probabilities that Mr Purcell's contact was deliberate as alleged or that he apologised to Mr Scott-Young in a joking or belittling manner. 8 Other Matters 8.1 The Investigator notes these allegations have been raised in the context of the apparent ongoing cultural matters at Wagga Wagga Ambulance station, which were the subject of the cultural review and action plan finalized on 31 July 2019. Of particular significance was the fact that Mr Purcell was the subject of a number of complaints regarding bullying and harassment by a number of paramedics at Wagga Wagga Ambulance station. 8.2 It is apparent from this investigation that there is a degree of animosity between Mr Purcell and the two key witnesses in this matter. There is no doubt that this impacted on the way each witness perceived each other and their subsequent actions which in turn effected the way in which the Investigator could reasonably rely on the evidence of individuals. The reasons behind the animosity and the appropriate method to address them fall outside the Investigator's scope and may be appropriate for other action. 8.3 Mr Purcell raised the possibility of the allegations raised against him were false and vexatious. Ordinarily there is some difficulty in substantiating claims of this nature and it requires positive evidence that Mr Scott-Young and/or Mr Horsley, knowingly made claims that were false, as opposed to making an honest mistake. In relation to this matter, the Investigator finds no such evidence. 8.4 Specifically with respect to Allegation 1, the Investigator cannot rule out the possible that unintentional contact may have occurred as Mr Purcell walked past and as such, Mr Scott-Young and Mr Horsley may have held an honest but mistaken belief that such conduct as intentional. With respect to Allegation 2, it was common ground that contact had occurred. It is possible that Mr Scott-Young honestly believed that the conduct was intentional drawing upon his honest belief of what occurred at Wagga Wagga Hospital.

Allegations 1(a) and 1(b)

1. Mr Scott-Young gave evidence that, on 21 November 2019 at around 8.00pm, he was seated at an "L" shape desk in the ambulance administration area, known as the Ambulance Bay, at Wagga Wagga Base Hospital. His witness statement contained the following in relation to Allegations 1(a) and 1(b): 12. While I was sitting at the desk, Mr Purcell entered the ambulance administration area. 13. As he entered, he said words to the effect of "Hello Tim". I replied with words to the effect of "Hi Eamonn." 14. Immediately after Mr Purcell entered, I felt a hard and bony impact to the back of my head. On a scale of force of 1 to 10, the impact was a 5 or a 6. The impact caused me some discomfort. 15. I was not looking at Mr Purcell at this time. Given that as at that point in time I had had some workplace difficulty with Mr Purcell in the past, I did not want to react, so I ignored it. I felt that Mr Purcell was attempting to provoke me into reacting in a manner which might make the situation worse, and unfavourable for me. 16. Mr Purcell then sat in a chair two chairs down from me. 17. Within about a minute or so from the impact to my head, I then felt several successive hits to my chair around two to four times. The hits were around a 3 or a 4 on a scale of force of 1 to 10. I still wasn't looking at Mr Purcell, so I didn't see what was hitting my chair. 18. I still did not say anything to Mr Purcell at this time, as I wanted to ignore him. 19. Mr Purcell then said words to me to the effect of "Can you please move over Tim". I then moved down the desk, towards the printer near the entrance to the ambulance administration area.
2. Mr Scott-Young in this statement refers to only one "impact" with his head. However, when his witness statement was tendered into evidence in these proceedings, Mr Scott-Young stated, with respect to paragraph 14: Yeah, Commissioner, I'd like to make a statement relating to 14. There should be additional information there. It says, "I felt a hard bony impact to the back of my head." Soon after that around the same time within that period of time, there were several smaller bumps as well in close succession to the main hard bony impact. That's the only addition to the original statement.
3. This was consistent with a written statement that Mr Scott-Young made on 2 December 2019. That statement contained the following: 11 On 21 November 2019 at Wagga Wagga Hospital I was in the ambulance administration area. I was sitting in the back corner when Eamonn approached and stated "hello Tim". I replied and continued with an article I was reading. I felt several bumps to the rear of my head possibly from Eamonns Hip/Leg region. There was no one else in the area that could have made physical contact with me. I continued to read disregarding this behaviour I then had several hits from his chair to the rear of my chair to which he stated "can you please move over Tim so I can sit down. I moved down further towards the printer. Following this James Sutton entered the area from his paediatric pts he was attending to in a separate section of the triage area. Eamonn then asked if James could sit down to which I moved further down the bench. Nothing was said on this day as I was not interested in partaking in this type of inappropriate behaviour nor did I want any form of conflict in attempting to address or identify this issue due to negative past exposure with Inspector Purcell. I felt that all these physical impacts were unnecessary, deliberate, malicious and an attempt to intimidate or provoke. My initial position allowed for plenty of room at the bench without Eammon having to move past me or make any physical contact. There were no other people in the area to restrict space. People normally move past each other in this area without physical contact.

Allegation 2

1. In relation to Allegation 2, Mr Scott-Young gave the following evidence: 24. As I walked down the hallway, I saw Mr Purcell ahead of me, talking to Juliann Exton, the acting Duty Operations Manager at the time. 25. Mr Purcell and Ms Exton appeared to finish their conversation, and then Mr Purcell began walking towards me down the hallway. 26. I walked along the left-hand side of the hallway in a usual way. There is enough room in that hallway that if two people were walking side by side, you could fit another person between them. 27. As Mr Purcell approached me, he changed direction and veered towards me. He then dropped his right shoulder into me and made contact with my right arm and abdomen region. 28. Mr Purcell then immediately said words to the effect of "I'm sorry Tim", in a manner which I thought was sarcastic and belittling. Mr Purcell had a smirk on his face, suggesting to me that his apology was insincere. 29. The force of Mr Purcell's impact with me was strong enough to briefly push me into the wall of the hallway. 30. Mr Purcell's action in the corridor towards me caused me concern and distress, including as I had had the experience at the Wagga Wagga Base Hospital that I refer to above, just a week before.
2. Shortly after this incident, Mr Scott-Young sent an email to Zone Manager Liesa Huggins in the following terms: Hi Lisa just advising I have just spoken to Eamonn regarding multiple inappropriate physical contacts recently. Once today where his arm swung out and contacted me in the hallway and once on my last night shift where he contacted me several times with his hip and the chair whilst sitting on my chair in the ambulance section of the hospital. I have advised him that this is to stop immediately and in fact this is assault. I am willing to take this externally if required.
3. In relation to Allegation 2, Mr Horsley referred to the written statements he had made on 6 December 2019 and 7 March 2020.
4. The statement of 6 December 2019 contained the following: 16. In relation to the events on 28 November 2019 I wish to state the following details. On 28th November I was on a dayshift 05:45 - 18:00 partnered with Tim Scott-Young. At approximately 11:00 I was in the SO office with Simon Parr finalising my next roster projection. Eamonn walked past our door and I then heard him say words to the effect "sorry Tim" and then I heard Tim say words to the effect "that's ok Eamonn". Tim was then immediately out the front of the SO doorway and pointed to his stomach area looking startled and said words to the effect "he just hit me". Tim then walked back toward where Eamonn was.

Case for the appellant

1. The appellant has, from the outset, denied each of the allegations made against him by Mr Scott-Young. He did this in his letters to Mr Gately of 10 January, 23 March and 28 April 2020 and in an interview he had with Mr Cheung and Murray Bell, Manager Investigations, Professional Standards Unit, on 24 January 2020, as part of Mr Cheung's investigation.
2. The appellant's witness statement tendered in these proceedings contained the following: Account of the Events Allegation 1(a) and 1(b) 30. On 21 November 2019, I was called out to support paramedics Terry Martin and James Sutton at a distressing case. Namely, a baby had been allegedly punched by their father. There was a mother, the assaulted baby and several other children involved. 31. After assisting at the scene, I attended the Wagga Wagga Emergency Department (ED) to assist the paramedics. Additionally, I undertook to do a Child at Risk mandatory reporting on the case straight away. 32. Terry Martin and James Sutton had already arrived at the hospital and were in the triage area of the Emergency Department with the patient and family members as I entered. 33. The ED has an area of triage where stretchers and patients are assessed. Off to the side is an admin area where Paramedics sit and do their computer case work. It is a smaller space with an L shaped built-in desk. The area is a dead-end and has a coffee bar and sink up at the triage end with a microwave and sandwich maker at the other end used by hospital admin staff. …………………………… 37. Mr Carter and Mr Horsley were leaning on and standing in front of the sink area. They were talking to Mr Scott Young. 38. Mr Scott Young was seated in the far-right hand comer of the room... He was facing the sink area and his legs were out in front of him pointing toward the triage/ sink end of the area. 39. As the three people were talking, I felt that it would be rude to sit in the middle of the conversation so decided to take a position on the back desk to the left of Mr Scott Young. 40. I said words to the effect "Hello everyone..." as I moved through the area… 41. I did not 'pass' Mr Scott Young as he was in the far-right hand corner of the area and so I could not move any further passed him as my path was obstructed by the desk, the cessation of my movements resulted with me being beside Mr Scott Young. 42. There was a microwave, a sandwich maker and three vacant office chairs in front of me. There was limited room available in this space to undertake paperwork. 43. I said words to the effect "Tim can I have some room to sit down here." My body was facing the outside facing window and my head was tilted slightly towards Tim when I did this. 44. He did not acknowledge me or move. 45. I asked several times and did not receive a response. 46. As he has previously reacted poorly to requests, I chose not to pursue this any further. I then removed two of the three chairs that were in front of me against the wall to my left, away from Mr Scott Young, to make space to sit down. 47. I moved them to my left, away from Tim, along the wall towards the triage/sink end of the admin area… 48. I did not apprehend any contact made between the chairs and Mr Scott Young, or the chair which Mr Scott Young was seated during this manoeuvre. 49. I then sat down in the chair that remained. My position was almost in front of the sandwich maker but slightly to the right side of it. 50. On sitting down, Mr Scott Young turned in his chair 90 degrees to his left such that he was facing towards the Corridor window. His legs were straight under that desk. 51. At that point, the right lateral aspect of my chest was against the back of his chair. We were seated at right angles to each other… 52. I felt at certain times Mr Scott Youngs chair back push against my chest. 53. I made no comment as I was determined not to react or engage in further discussions as I did not want to provoke past behaviours that I had experienced with him. 54. Mr Sutton came into the area several times to give me information that I required to submit the child at risk notification. 55. As the notification progressed it became clear that the dates of birth and full names of all the children present at the incident referred to in paragraph 30 of this statement were required. 56. At some point Mr Sutton came back with all the information that was required. He stood behind me and we attempted to exchange the information. 57. This was less than ideal, so I asked Mr Scott Young words to the effect 'Tim can I please have some room for Jim to sit down here.' 58. Mr Scott Young gave no acknowledgement or response. 59. I asked several times again. 60. Mr Scott Young stood up without comment and moved down towards the triage area. 61. Mr Sutton sat down to my right and we completed the child at risk notification. 62. I cannot recall that I saw Mr Scott Young, Mr Horsley or Mr Carter after this. Allegation 2 63. On 28 November 2019 I was rostered on for Rescue Training and arrived at Wagga Wagga Ambulance Station just prior to 0800 hrs. 64. At some point I was standing in the corridor outside of the SO Office/Station entrance. 65. Ms Julieann Exton approached me there and we had a conversation about releasing two officers from training to road duties. 66. We then walked down the corridor towards the meal room. 67. Towards the end of the corridor I saw Mr Scott Young walking towards me. 68. As we passed each other I felt that we bumped shoulders or upper arms. 69. Out of instinct I immediately said words to the effect "Sorry Tim.." and continued towards the meal room. 70. After finishing in the meal room, I walked through the corridor towards the SO Office. 71. Mr Scott Young stopped me before I got there and asked if he could speak with me. 72. I said words to the effect "yes, in a minute. I just need to sort this out first". 73. I then walked into the SO Office. 74. Mr Horsley was sitting on a chair perpendicular to the SO desk. Mr Simon Parr was seated behind the office desk. 75. I had some discussions about him being on roster and needed for the road and then I turned and left the Office. 76. Mr Scott Young was still in the corridor and I asked him to follow me to the Zone Office. I did this as the offices in that area afforded some privacy but also because I knew that Zone Manager Huggins was working in the conference room there and I felt I may need some assistance in the forthcoming conversation with Mr Scott Young. 77. Mr Scott Young stopped and would not proceed further than the foyer / Zone Office corridor. 78. I had some concerns about these two interactions and conversations, so I wrote a File Note on 29 November 2011 outlining my perception of the international and subsequent conversations…

Submissions of the respondent

1. During final submissions, Mr McLeod, counsel for the respondent, put the following: To give you a roadmap of where I'm going Commissioner this afternoon, my case depends on three propositions. The first is that the relevant conduct occurred and in relation to the relevant conduct I refer to either the bumping incident on 21 November at the hospital or the chair incident on the same day at the hospital being 21 November 2019 or the corridor incident which occurred on 28 November 2019 at the ambulance station. I'm going to come back to that point because I want to deal with it head on. I want to make it clear Commissioner that my client should not be precluded from relying on one or more of those incidents, even though the reality is that the decision-maker Mr Gately only found the chair incident to have been established. I will come back to why I say I can do that shortly but the first proposition is the conduct occurred. The second proposition is that the conduct, if you get to the point of being satisfied that the conduct occurred, there are two other steps, the second of which is finding whether or not the conduct constituted misconduct and if you answer that in the affirmative, that second issue, you turn to question of whether the disciplinary and remedial action that was proposed was appropriate and proportionate in the circumstances. Now I'm going to focus predominately my submissions on the first submission, that is that the conduct occurred because I say Commissioner that if you are satisfied that the conduct occurred, it's a short and logical step to find that it constituted misconduct and it's also a short and logical step to find that if the conduct occurred the disciplinary and remedial action that was imposed was appropriate in the circumstances. I stress when I say the conduct occurred I'm meaning one of the three incidents occurred because in my submission you would clearly be satisfied that if one of those three interactions occurred between a senior manager in Mr Purcell's position and Mr Scott-Young, it would constitute a clear breach and a serious breach of the relevant Code of Conduct at cl 4.2.1 (sic 4.1.2).
2. Mr McLeod then provided a detailed analysis of the evidence relating to each of the three allegations against the appellant and concluded as follows: So, ultimately, the way that I've put the case going back to where I started in closing, was that there were three propositions. Did the conduct occur? Does it constitute a serious breach of the code of conduct, such as to be misconduct? And is the disciplinary and remediate action appropriate and proportionate, bearing in mind the protective function? What I'm putting, Commissioner, is that realistically issues 2 and 3 are easy to resolve in this case. It's issue 1, as to whether the conduct occurred, that one needs to most grapple with to arrive at the appropriate finding in the case. But when one does step back and assess the evidence given and the way it was given by the material witnesses, in my submission this is a case of clearly being able to get to a level of comfortable satisfaction in respect of the relevant conduct having occurred and, in the alternative to that, Commissioner, one clearly gets to a position of satisfaction in respect of the chair incident. Even if one is short of getting to that level of satisfaction with either the bump incident or the corridor incident. And as long as one gets to the level of satisfaction with the chair incident and takes it for what it is, which is unwanted shoving of a chair into a more junior colleague in a work space, one should readily appropriately - I withdraw "readily" - one should appropriately find that it constitutes misconduct and that the disciplinary and remedial action that followed was appropriate in the circumstances.

Submissions of the appellant

1. Ms Forsyth-Sells for the appellant outlined the history of disharmony between the appellant, on the one hand, and Mr Scott-Young and Mr Horsley, on the other, and stated: Mr Scott-Young and Mr Horsley made complaints about Mr Purcell in 2018 which were subject of the assessment and the letter of exhibit 8 that my friend took Mr Purcell to. Mr Eller in his testimony stated that he agreed with Mr Purcell that Mr Purcell had a reasonable fear that these allegations would come forward again, that his returning to the role of DOM at Wagga Wagga station that this conduct wouldn't stop, and now we are faced with fresh allegations that are subsequent to these events. That is relevant to colour the perception that Mr Horsley and Mr Scott-Young have of Mr Purcell. What we do not submit, Commissioner, is that Mr Horsley and Mr Scott-Young outright lied. That is not our submission and we do not make that submission. We understand that Mr Horsley and Mr Scott-Young believe what their evidence is is true but that doesn't necessarily make it truth and it certainly doesn't make it true when you have conflicting evidence from Mr Purcell. What we have here, Commissioner, is an issue of perception, perception by two key witnesses of the conduct of Mr Purcell and that's a consistent issue that Mr Purcell has been dealing with for almost two years now.
2. Ms Forsyth-Sells then provided her own detailed analysis of the evidence as it related to each of the allegations and stated: The correct conclusion that you ought to draw is in line with the order sought and in line with the evidence available to you. This appeal necessarily needs to be allowed. It is very much in line with your protective jurisdiction. It protects public servants from unfair, irrational and illogical disciplinary action and Mr Purcell's professional record ought to be corrected and we submit that that is available to you today and you ought to do it when you look at the evidence in this de novo decision.

Allegation 1(a)

1. In relation to Allegation 1(a), I agree with the conclusion reached by Mr Cheung in his investigation report at paragraph 7.9 that there is not sufficient evidence on the balance of probabilities to suggest that the appellant made unnecessary and deliberate physical contact with Mr Scott-Young by walking into him and bumping the back of his head whilst he was seated (at [20] above). This conclusion was accepted by Mr Gately and, ultimately, this allegation was found to be "not substantiated" (at [10] above).
2. Further, I have some serious reservations about some of the evidence relied upon by the respondent in relation to this allegation.
3. Firstly, when Mr Scott-Young first raised this matter with Ms Huggins by email on 28 November 2019, he stated that the appellant "contacted me several times with his hip and the chair whilst sitting on my chair in the ambulance section of the hospital" (at [33] above). In his written statement of 2 December 2019, Mr Scott-Young claimed that he "felt several bumps to the rear of my head possibly from Eamonns Hip/Leg region" (at [23] above).
4. In his witness statement in these proceedings at paragraph 14, Mr Scott-Young stated "Immediately after Mr Purcell entered, I felt a hard and bony impact to the back of my head. On a scale of force of 1 to 10, the impact was a 5 or a 6. The impact caused me some discomfort" (at [21] above). This suggests just one bump to the back of Mr Scott-Young's head rather than several bumps. However, at the commencement of his oral evidence, Mr Scott-Young stated: Yeah, Commissioner, I'd like to make a statement relating to 14. There should be additional information there. It says, "I felt a hard bony impact to the back of my head." Soon after that around the same time within that period of time, there were several smaller bumps as well in close succession to the main hard bony impact. That's the only addition to the original statement.
5. Mr Horsley, who claims to have witnessed the incident, described it in a written statement which he made on 6 December 2019 as follows (at [26] above): I observed Eamonn walk into the desk area where Tim was and stepped into Tim physically contacting him as he walked past, giving him an angry glare as he did it and said words to the effect "sorry Tim".
6. In his written statement of 6 March 2020, Mr Horsley stated (at [27] above): I observed Eamonn walk to the desk area where Timothy was. Eamonn stepped into Tim physically making contact with Timothy, giving Timothy an angry glare and I heard Eamonn say words to the effect of "Sorry Tim." Eamonn's left hip impacted into Timothy's right shoulder/head.

Allegation 1(b)

1. As with Allegation 1(a), I have some serious concerns about the evidence relied upon by the respondent with respect to this allegation.
2. Mr Scott-Young's evidence was (at [21], [23] above): Within about a minute or so from the impact to my head, I then felt several successive hits to my chair around two to four times. The hits were around a 3 or a 4 on a scale of force of 1 to 10. I still wasn't looking at Mr Purcell, so I didn't see what was hitting my chair. And: I then had several hits from his chair to the rear of my chair to which he stated "can you please move over Tim so I can sit down. I moved down further towards the printer.
3. At paragraph 17 of his witness statement, Mr Horsley stated that the force of the contact was strong enough to physically push Mr Scott-Young along the desk (at [25] above). Mr Horsley did not refer to this in his written statements of 6 December 2019 and 7 March 2020 (at [26]-[27] above).
4. In Mr Carter's written statement of 3 December 2019, he claimed to have seen the appellant deliberately use a "violent shove of the chair that Tim was seated in to indicate that he could not get passed him" (at [30] above). In his written statement of 31 January 2020, Mr Carter recalled that the appellant was seated when he made contact with Mr Scott-Young's chair and did so with his hand, deliberately using a "violent shove" of the chair on which Mr Scott-Young was seated so that he "scooted along the desk towards the printer after he was pushed" (at [31] above). In his witness statement prepared for the purpose of these proceedings, Mr Carter claimed that he "cannot now recall whether Mr Purcell shoved Mr Scott-Young's chair using the empty chair between Mr Purcell and Mr Scott-Young, or whether he shoved Mr Scott-Young's chair with his own hand or hands" but that the "shoves were strong enough to push Mr Scott-Young and his chair in towards the desk and also bunt him along the desk, despite Mr Scott-Young being a big man" (at [28] above).
5. Mr Scott-Young did not say that the force of the contact with his chair caused his chair to move sideways along the desk.. That could not have occurred as described by Mr Horsley or Mr Carter if, as Mr Scott-Young stated on 2 December 2019, the "hits" were to the rear of his chair. Further, I find it difficult to accept that, if this incident occurred as described by Mr Scott-Young, he did not even turn his head around to see what the appellant was doing. Mr Scott-Young then claimed that, when he was asked to move by the appellant, he complied.

Allegation 2

1. Like Mr Cheung and Mr Gately, I have determined that this allegation has not been substantiated. To the extent that any contact between the shoulders of Mr Scott-Young and the appellant occurred as they walked past each other in the corridor of the ambulance station on 28 November 2019, I find, on the evidence before the Commission, that such contact was slight and accidental.
2. I prefer the evidence of the appellant and Ms Exton, who witnessed the incident, to that of Mr Scott-Young who, in my opinion, was prone to exaggeration when it came to matters involving the appellant.
3. It follows that this appeal must be allowed.
4. In her final submissions, Ms Forsyth-Sells submitted that, should the Commission allow the appeal, the remedial action to which the appellant has been subjected, namely the performance improvement plan, should be "removed, because but for the finding of misconduct, would this performance improvement plan exist?".
5. Section 97 of the Industrial Relations Act 1996 ("Act") identifies the classes of "decision" which may be the subject of an appeal such as the one presently before the Commission. The imposition of remedial action by way of a performance improvement plan does not fall within any of those identified classes.
6. Ms Forsyth-Sells also claimed that the appellant should be reimbursed for the financial loss he has suffered as a result of the disciplinary action taken against him. Although his base rate of pay was not reduced, it was claimed that the appellant has suffered financially through the loss payment for call-outs and of "afternoon shifts and the like and the allowance that he would have been given regardless of if he's actually called out".
7. Whilst this has been an unfortunate consequence for the appellant of the decision that I am about to quash, I do not regard lost shift penalties, call-out allowances and overtime payments as coming within the terms of section 100D of the Act. I decline to make the order sought.

Orders

1. I make the following orders: (1) The public sector disciplinary appeal of Eammon Purcell filed on 1 June 2020 is allowed. (2) The "Final Misconduct Decision - Disciplinary and Remedial Action" set out in the letter from the Director Clinical Operations (Sectors), Tony Gately, to the extent that it subjected Mr Purcell to a temporary reduction in classification for a total period of 12 months, is quashed. (3) Mr Purcell is to be restored to his previous classification of Duty Operations Manager in the Murrumbidgee Zone with effect from Monday 12 October 2020. John Murphy Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2020