QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Macann v State of Queensland (Queensland Ambulance Service) [2024] QIRC 146	
PARTIES:	
	Macann, Matt
(Appellant)
v
State of Queensland (Queensland Ambulance Service)
(Respondent)	
CASE NO:	PSA/2024/38	
PROCEEDING:	Public Sector Appeal – Fair Treatment Decision	
DELIVERED ON:	14 June 2024	
HEARING DATE: 	13 May 2024	
MEMBER:	Butler IC	
HEARD AT:	Brisbane	
ORDERS:
	1. The decision appealed against is set aside.
2. The decision appealed against is substituted with the following decision:
a)	 Allegations A and B are not substantiated.
b)	 Allegation C is substantiated.	
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a disciplinary finding decision – where the appellant is employed by the respondent as an Ambulance Officer – where it is alleged that the appellant is guilty of Code of Conduct breaches – where the appellant appeals the substantiation of each of three allegations – where the decision is set aside and is substituted with a different decision	
LEGISLATION AND OTHER INSTRUMENTS:

CASES:	Ambulance Service Act 1991 (Qld) s 111
Code of Conduct for the Queensland Public Service cls 1.5(a), 3.1
Public Sector Discipline Directive (Directive 05/23)
Industrial Relations Act 2016 (Qld) ss 562B, 562C
Public Sector Act 2022 (Qld) ss 91, 100, 131
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Medical Board of Australia v CER (Review and Regulation) [2023] VCAT 1415
Medical Board of Australia v Gomez [2015] QCAT 121 
Medical Board of Australia v Lee (Review and Regulation) [2019] VCAT 2036
Velkoski v The Queen [2014] VSCA 121; 45 VR 680	
APPEARANCES:	Mr A. Nash, United Workers Union, Industrial Union of Employees, Queensland for the Appellant
Ms K. White, State of Queensland (Queensland Ambulance Service) for the Respondent 	

Reasons for Decision
[1]	The Appellant, Officer Matt Macann, is employed by State of Queensland (Queensland Ambulance Service) ('QAS'). Mr Macann is employed as the Officer-in-Charge for an ambulance station. 
[2]	These proceedings have been commenced in relation to certain findings made following Mr Macann's attendance on a patient on 15 October 2022. Those findings were made following a show cause process. 
[3]	The parties agree I should try to preserve the patient's privacy, and refrain from revealing his identity, in this decision. To that end I have used pseudonyms for certain persons.
The show cause process and the decision appealed against
The show cause notice, NTSC1
[4]	By letter dated 28 July 2023, Assistant Commissioner Robbie Medlin of the QAS wrote to Mr Macann putting three allegations to him and asking him to show cause why disciplinary findings should not be made. The Respondent refers to this letter as NTSC1. For convenience, I will do the same. 
[5]	NTSC1 set out the allegations and particulars of each. The three allegations were:
(a)	Allegation A: That on 15 October 2022, while attending incident [number] you acted inappropriately towards a patient, calling them a "little bitch".
(b)	Allegation B: That on 15 October 2022, while attending incident [number] you acted inappropriately towards a patient by demonstrating little respect for the patient's situation and medical history.
(c)	Allegation C: That on 15 October 2022 you failed to provide adequate clinical care when attending incident [number]. 
[6]	NTSC1 included four paragraphs as particulars of Allegation A. The third and fourth related to a separate incident of September 2020. As can be seen, Allegations B and C were in broad terms. NTSC1 included 16 paragraphs as particulars of Allegation B, and 17 paragraphs as particulars of Allegation C.
[7]	NTSC1 also set out potential disciplinary grounds arising from those allegations if substantiated. Those grounds related to potential contraventions of the Code of Conduct for the Queensland Public Service (which I will refer to in this decision as "the Code of Conduct"), each in turn potentially giving rise to a disciplinary ground pursuant to s 91(1)(h) of the Public Sector Act 2022. For Allegations A and B, the conduct was said to contravene cl 1.5(a) of the Code of Conduct. For Allegation C it was said to contravene cl 3.1. 
Show cause response 
[8]	On 18 August 2023, Mr Macann responded to NTSC1 by way of: 
(a)	a letter from United Workers Union, which I will refer to in this decision as "the union's show cause response," of that date; and 
(b)	an enclosed response under Mr Macann's hand, which I will refer to in this decision as "Mr Macann's show cause response," of the same date. 
[9]	Mr Macann denied the allegations. He also reflected on the events of the night in question and offered comments about what he might do differently in the future. 
The decision, NTSC2
[10]	After receiving the show cause response, Mr Medlin made the decision the subject of these proceedings and by letter of 20 February 2024: 
(a)	advised Mr Macann that three allegations identified as allegations A, B, and C, had been substantiated;
(b)	advised that he had found, in connection with each of the substantiated allegations, that the Appellant had thereby contravened the Code of Conduct with each such contravention giving rise to a disciplinary ground pursuant to s 91(1)(h) of the Public Sector Act;
(c)	indicated that various forms of disciplinary action were being considered, specifically, 
(i)	reduction in classification level from Officer in Charge to Advanced Care Paramedic (with an indication that there would be a difference in base pay of $16,279 per annum);
(ii)	transfer to a different station within a region that was stated in the letter;
(iii)	a reprimand;
(d)	indicated he was also considering requiring the Appellant to undertake certain training and/or professional activities (which were set out); and
(e)	provided Mr Macann with seven days to show cause why the disciplinary action should be taken. 
[11]	As this letter contains both the decision as to disciplinary findings, and further notice to show cause, this time as to disciplinary action, QAS refers to the letter of 20 February 2024 as "NTSC2." For convenience, the same term will be used in this decision. Mr Macann received NTSC2 on 23 February 2024.
[12]	Mr Medlin was the decision-maker. The decision indicates he was a delegate of the Chief Executive for that purpose. The delegation and his authority to make the decision are not in issue.
[13]	There were documents attached to NTSC2. It is clear on the face of the materials, and from the Respondent's submissions, that: 
(a)	these documents were included on the basis that they may be relevant to the next show cause process, and not to the decision under appeal in these proceedings; and
(b)	these documents were not considered in deciding whether the allegations were substantiated, or in making the disciplinary findings. 
[14]	Accordingly, it was not necessary for me to have regard to those documents in determining this appeal.
The appeal
[15]	By notice of appeal filed on 7 March 2024 Mr Macann sought to appeal the decision as set out in the letter of 20th February 2024, i.e., NTSC2. Mr Macann relied on the following grounds in support of his appeal:
(a)	The Respondent incorrectly made disciplinary findings in relation to allegations A, B and C on the basis of:
(i)	poor or unreliable evidence;
(ii)	unproven findings;
(iii)	subjectively weak inferences; and
(iv)	faulty and illogical reasoning.
(b)	The Respondent sought to impose grounds for discipline which were the product of faulty reasoning and unreasonable inferences.
(c)	In making the disciplinary findings, the Respondent demonstrated confirmation bias and took a myopic approach to the relevant issues.
[16]	On 7 March 2024, the Commission made a directions order. The Commission ordered, among other things, that the decision appealed against was stayed until the determination of the appeal or further order of the Commission. 
Relevant facts and circumstances
[17]	Mr Macann had attended on the same patient prior to the events of 15 October 2022, which were primarily the subject of the show cause process and decision. Initially he had responded to a call and subsequently attended on the patient, then aged 18, on Wednesday 29 July 2020. He subsequently responded to calls and attended on the patient on: 
(a)	Thursday, 24 September 2020, 
(b)	Tuesday, 23 February 2021, and 
(c)	Tuesday, 15 June 2021.
[18]	Mr Macann also interacted with this patient on other occasions, at Moura Hospital, but only when he happened to be there at the same time as the patient was present, not in the context of a formal call out in which he was the responsible ambulance officer. 
[19]	On the night of Saturday, 15 October 2022, an ambulance was again called in relation to the patient. Mr Macann responded. The electronic Ambulance Report Form (eARF) indicates that Mr Macann arrived at 21:37 (9.37 pm). It does not seem to be in issue that: 
(a)	when Mr Macann arrived at the residence to which the ambulance had been called, the patient was on the ground and was suffering difficulty breathing; 
(b)	the patient had had about eighteen standard drinks;
(c)	two other persons, Ms Jones and her partner Mr Smith, were with the patient;
(d)	Ms Jones and Mr Smith were the patient's housemates.
[20]	The material that was before the decision-maker reveals that at this time the patient was twenty years old. Mr Macann's show cause response refers to the patient as having been above average height and weight as at 15 October 2022. 
[21]	The electronic Ambulance Report Form does not show what time Mr Macann left the residence. It is not in issue that after Mr Macann left the residence, the patient's mother arrived. 
[22]	The following day, Sunday 16 October 2022, at 5.34 pm Ms Jones submitted a written complaint about Mr Macann, arising from the events of the previous night. Later, at an interview, she indicated her memory of the events was not too good and said "that's why I made sure I wrote it as soon as it happened."
[23]	Later the same night, Sunday 16 October 2022, the patient's mother also submitted a written complaint. In addition to raising issues about the previous night's events, the complaint referred to an undated previous encounter. This was a reference to Mr Macann's attendance on the patient and his mother on 24 September 2020.
[24]	The Respondent then caused an investigation to be conducted in relation to the events of both 15 October 2022 and 24 September 2020. An interviewer, who was not the decision-maker, interviewed Ms Jones, with Mr Smith present and contributing, on Tuesday, 13 December 2022. He interviewed the patient's mother on the same day. He interviewed Mr Macann on 25 January 2023. Around this time Mr Macann provided an undated written statement, which he appears to have read from at interview. The Respondent says this investigation was concluded on 16 February 2023. 
[25]	There was an investigation report. The investigation report is not before the Commission. It was not listed, by the Respondent, in NTSC1. In the current proceedings, the Respondent supplied to the Commission a list of the material that had been before the decision-maker. The investigation report was also not in that list. The Respondent says Mr Medlin had access to the whole investigation file including the report when making his decision in NTSC2 but did not necessarily read it. 
[26]	On 12 May 2023 Mr Darren Pirie, Acting Assistant Commissioner, Central Region, Queensland Ambulance Service, wrote to Mr Macann saying he had received the investigation report concerning allegations of inappropriate behaviour exhibited towards [the patient] on 24 September 2020 and 15 October 2022. 
[27]	The letter of 12 May went on to say that Mr Pirie had reviewed "these matters" and had determined that it was appropriate to provide Mr Macann with an opportunity to respond to the issues raised in the report. The report was not enclosed; instead, Mr Pirie provided what he described as an extract from the investigation report summary. The extract set out findings in relation to six of eight allegations but did not set out the allegations themselves. The letter indicates that allegations six and seven had been omitted because those allegations had not been capable of substantiation. 
[28]	This letter of 12 May was not on the list of documents of material that had been before the decision-maker, that the Respondent supplied in these proceedings. Nor had it been listed in NTSC1 among the documents to which the decision-maker would have regard. At hearing the Respondent indicated the decision-maker had access to this document. It submitted Mr Medlin would have been aware that the allegations were reframed as between the investigation and the show cause process because he was the one who reframed them. This suggests that Mr Medlin would have been aware of why the earlier responses from Mr Macann were addressing allegations in different terms, including a different formulation of the "little bitch" comment.
[29]	The Respondent provided Mr Macann with an opportunity to respond to Mr Pirie's letter of 12 May. The Appellant availed himself of that opportunity by letter dated 24 May 2023. This response is referred to as "the OTR response."
[30]	As set out above, NTSC1 was subsequently issued, bearing a date of 28 July 2023.
Legislation and instruments
[31]	This is an appeal under Chapter 3, Part 10 of the Public Sector Act 2022 (Qld) and Chapter 11 of the Industrial Relations Act 2016 (Qld). It is a fair treatment appeal, brought under section 131(1)(d) of the Public Sector Act, in relation to the findings made against the Appellant. 
[32]	Section 91 of the Public Sector Act sets out the grounds for discipline, giving rise to liability for disciplinary action. Relevantly, s 91(1)(h) provides that "[a] public sector employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has … (h) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action." The Code of Conduct for the Queensland Public Service is a relevant standard of conduct. 
[33]	Subsection 91(2) of the Public Sector Act provides that a disciplinary ground arises when the act or omission constituting the ground is done or made. The Public Sector Act amended the Ambulance Service Act 1991. The Public Sector Act commenced on 1 March 2023. Chapter 3, Part 8, Division 3 of the Public Sector Act applies in relation to a disciplinary ground whether the disciplinary ground arises before or after the commencement of the Public Sector Act. 
[34]	The parties accepted that the Discipline Directive, directive 05/23, which was made pursuant to section 100 of the Public Sector Act, applied to the show cause process that led to the decision in NTSC2. The Respondent said that since the commencement of the Public Sector Act it no longer had its own discipline policy. 
[35]	The Appellant's union, which represented him in these proceedings, provided, with its submissions in reply, a copy of a document dated September 2014 entitled "Department of Health, Queensland Ambulance Service, Workplace Investigations, A guide for investigators." The Respondent says this document is a guide, not a policy or procedure, so it is there to assist investigators, and it is the Respondent's "preferred approach" that they follow it. 
[36]	Both that guide and an email tendered by the Respondent refer to something named "QAS HR Procedure – Workplace Investigations." I asked the parties about this document at hearing, but neither party sought to put it before me or to make submissions about it. Accordingly, I have not had regard to it.
Parties' submissions
[37]	The following is a brief summary of the parties' submissions. It is not exhaustive. I have read all of the submissions and have taken them into account, as well as listening to the parties at the hearing. The parties declined the opportunity to make further written submissions after the hearing.
Appellant's submissions
[38]	The Appellant's representative, his union, made submissions in writing (including submissions in reply to the Respondent's submissions) and orally at the hearing. It submitted that the allegations should not have been found to have been substantiated. It took issue with the decision to find all three allegations were substantiated on several bases. There were various factual matters in dispute. It said if any of the allegations were not upheld the proposed disciplinary sanctions should be reviewed. The union conceded that the allegations, if substantiated, could give rise to the stated disciplinary grounds. 
[39]	The union's submissions included the following.
(a)	The allegations put to the Appellant in the show cause process were "reframed" from allegations previously put to him for response (via the letter of 12 May 2023).
(b)	Two witnesses, Ms Jones and Mr Smith, had been interviewed together and not separately, and also referred to Mr Smith prompting Ms Jones in relation to the 'little bitch' comment, rather than Ms Jones offering it voluntarily or spontaneously. In this regard the union also says that: 
(i)	in the interview Mr Smith was not stating his recollection, but asking Ms Jones a question about hers, "in the manner of someone who was not quite sure what version of events they are supposed to tell;"
(ii)	the QAS document "Workplace Investigations – a Guide for Investigators" states that investigators must not interview more than one individual at a time; and
(iii)	the Respondent must be held to the same level of accountability that it expected to hold the Appellant to, in that it must abide by its own procedures, and that the failure to follow procedures led to a "reduced ability to credibly test the evidence" of Ms Jones and Mr Smith.
(c)	Ms Jones's complaint was not contemporaneous as it was made twenty hours after the events, and after the involvement of the patient's mother.
(d)	There were inconsistencies in the material before the decision-maker.
(e)	The decision-maker had relied on hearsay, specifically, the account obtained from the patient's mother, who was not present at the material times on the night of the 15th of October. They also expressed a view that the patient's mother had a bias against the Appellant and that the decision-maker failed to take this into account in weighting her contribution.
(f)	The patient himself was not interviewed and nor was another person who was apparently present, having regard to the transcript of the interview with the housemates.
(g)	The decision-maker was wrong to find that the Appellant had been inconsistent in his characterisation of the patient presenting as physically and verbally aggressive and violent, given the content of previous records, despite the Appellant not making reports on those occasions. The union maintained the patient displayed an inappropriate need for tactile reassurance. It also pointed out no other ambulance officers had been asked about this patient's behaviour when they had attended upon him.
(h)	Mr Medlin took into account subjective matters which were not put to the Appellant for response. In that regard the union takes issue with his comment about the tone of the Appellant's show cause response.
(i)	As to the Appellant's compliance with the clinical practice guidelines, the two guidelines cited contradicted each other, and: 
(i)	the Appellant's actions were reasonable in the circumstances;
(ii)	there is subjectivity to an ambulance officer's assessment of whether a person, in whose care a patient is being left, is "sober" for the purposes of the relevant guideline; 
(iii)	the housemates were "intoxicated" but not "drunk," an officer lacks the tools to definitively measure sobriety, and at interview the housemates were not asked about their own assessment of their intoxication levels;
(iv)	the decision-maker's reasoning was contradictory, in that he was saying the housemates did not have sufficient capacity to be entrusted with the care of the patient on the night but were of sufficient capacity to provide credible witness statements in relation to the nights events; 
(v)	there was no further call to the residence after the Appellant's mother arrived; and
(vi)	it was unreasonable for the decision-maker not to have raised the issue of the Non-Transport Guideline with the Appellant before making the decision.
(j)	The union draws attention to the time that elapsed between the relevant incident of 15 October 2022, and the Appellant's show cause response of 18 August 2023, and says an inability to completely recall the specifics of the incident is unsurprising.
(k)	The union asserts the decision-maker did take into account the Appellant's work record, contrary to the Respondent's submission. It says that the work record actually supported the Appellant in that there were no past complaints referring to swearing, and that the Respondent's reliance on the Appellant's work record to his detriment in those circumstances evinced bias. 
(l)	As to the patient's past conduct, the union submits that the decision-maker did not indicate he had made inquiries of other people about the patient's conduct on other occasions; he indicated only that he had made inquiries about whether the Appellant had reported the behaviour after previous attendances. They point out that this is despite the Appellant having referred to instances at Moura Community Hospital where he had assisted staff to de-escalate the patient's behaviour.
(m)	As to the criticism in NTSC2 regarding the Appellant's lack of remorse, the Appellant's representative submit that he was in effect being criticised for failing to apologise for things he had denied doing.
[40]	As to the Respondent's submission that the Appellant could have looked at the Queensland Health database using the platform called the Viewer while on the scene, the Appellant says this disregards the relevant circumstances, all of which required the Appellant's full attention, namely that the patient: 
(a)	was seeking reassurance from the Appellant;
(b)	was of large stature making it unsafe for the Appellant to deal with the patient on his own;
(c)	was prone to unpredictable movements;
(d)	wanted to be taken into his home by his housemates at the time.
[41]	The union also submitted that material about the earlier interaction between Mr Macann, the patient, and the patient's mother should not have formed part of the basis for finding that Allegation A was substantiated. 
[42]	Prior to the hearing I asked that the parties be in a position to address me on the question of whether the events canvassed in particulars 3 and 4 of Allegation A constituted similar fact evidence. I drew their attention to certain decisions relevant to the use of similar fact evidence in civil proceedings. The union also referred to a Victorian Court of Appeal matter Velkoski v The Queen, a criminal case. 
[43]	In respect of the reliance on the earlier events the Appellant properly conceded the circumstances were similar on both occasions. The Appellant indicated there was a considerable time gap. His representative submitted the nature of the two alleged comments was very different, both in terms of content (the alleged "little bitch" comment compared with a "dad voice" comment) and the person to whom the comment was directed (on the basis that in one case the statement was said to have been directed towards the patient and in the earlier case it was directed away from him, and said under Mr Macann's breath). Mr Macann's representative submitted this was not tendency evidence, which I understood to mean that even if admissible it did not show any tendency that makes it more likely that the "little bitch" comment was made.
Respondent's submissions
[44]	The Respondent seeks that the appeal be dismissed on the basis that the substantiation of the allegations was open to the decision-maker based on the information available. 
[45]	The Respondent agreed with the Appellant's submissions that the allegations put to the Appellant in the show cause process were "reframed" from allegations previously put to him for response. They say that the decision-maker was aware of the reframing, and that the reframing reflected the use of wording directly from Ms Jones's written complaint, rather than from her later interview.
[46]	As to two witnesses being interviewed together, the Respondent says that though that was the case, each witness's own recollection was given. It also says that Ms Jones's complaint of 16 October was a contemporaneous record of her recollection of the event. Alternatively, it says that if this was a flaw in the process it is not sufficient to overturn the substantiation of Allegation A. 
[47]	Regarding the earlier interaction being taken into account, the Respondent submitted that the Appellant had admitted that on a previous occasion he had become frustrated with the patient, that that "lent credence to the fact that he could have become frustrated with the patient again on 15 October 2022," and "as a consequence, it was possible that he could have called the patient a "little bitch".
[48]	As to my request for submissions on whether this constituted similar fact evidence and if so, what the ramifications were, the Respondent pointed out the similarities between the two sets of circumstances, namely that in each case the patient was on the ground in pain and the Appellant wanted him to get up off the ground. They point out that the complaint about the "little bitch" comment was made by a housemate and the complaint about the Appellant's comment on 24 September 2020 was made by someone else, the patient's mother. They say that the Appellant had conceded he had become frustrated with the patient being on the ground on that occasion, and so evidence of that occasion supported the proposition that the Appellant would have reacted in the same way – becoming frustrated – on 15 October 2022. They say that it was reasonable to find on the balance of probabilities that both utterances attributed to the Appellant were in common with his frustrations with the patient. They disputed whether Mr Macann's own contributions indicated he had directed his comment on the earlier occasion away from the patient. In their submission it was not the case that on the earlier occasion Mr Macann had been de-escalating his own frustration. 
[49]	The Respondent says the contribution from the patient's mother confirmed the contemporaneous version provided by "the witnesses," and that her complaint represented her recollections of what Ms Jones and Mr Smith told her directly after the incident. The Respondent says the patient's mother's contributions also gave context as to what happened after Mr Macann left and the patient's mother arrived. 
[50]	It says it was open to the decision-maker to consider that the Appellant's response read as though he was inconvenienced by the callout because the patient's behaviour had not been so aggressive or violent to require certain reports being made. 
[51]	It submitted that the Appellant had failed to show remorse during the course of the investigation and subsequent discipline process, and that the decision-maker could consider the Appellant's behaviour during that process. 
[52]	It submitted that it was not unfair for the decision-maker to state an opinion as to what the evidence was showing him, given it was the task of the decision-maker to weigh the evidence and make findings on the balance of probabilities.
[53]	It submitted the Appellant could have checked the database during the attendance at the residence, or when leaving, using the iPad available to him.
[54]	The Respondent disagrees that the two clinical practice guidelines referred to in relation to Allegation C contradict each other. It maintains the Appellant failed to comply with the guidelines. It points to, among other things, the Appellant's evidence that the housemates had said they had had alcohol, noting that the alcohol guideline refers to leaving the patient with responsible and sober people. It submits that to be "sober" within the meaning of the term for the purposes of the relevant guideline, a person must not have had any alcohol. It concedes the guideline is not explicit on this point but says that is the ordinary meaning of "sober." It submits the lengths to which an ambulance officer must go to find out whether the person has had alcohol vary with the circumstances. It says in this case the Appellant knew the flatmates had had alcohol. It submits it was not unfair for the decision-maker not to raise the issue of the non-transport guideline before making the decision, because the Appellant had referred to that guideline during the earlier investigation of 23 May 2023, and had stepped through the relevant process (VIRCA) in his show cause response, so he was on notice of its relevance . It also relied upon Mr Macann's 17 years of experience, and that he would have been trained in relation to the non-transport clinical practice guideline.
[55]	The Respondent submits that inconsistencies in witness evidence is to be expected when dealing with different people's interpretations and memories of interactions. 
Consideration
[56]	In this matter, as in other proceedings under Chapter 11 of the Industrial Relations Act, the Commission is not bound by the rules of evidence, may inform itself in the way it considers appropriate, and is to be guided by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately concerned and the community as a whole.
[57]	Section 562B of the Industrial Relations Act provides that the Commission must decide an appeal by reviewing the decision appealed against. The Commission is not undertaking a fresh hearing on the merits. In determining this appeal, the Commission is to decide whether the decision appealed against was fair and reasonable. 
[58]	The Commission is not confined, in relation to 'reasonableness,' to legal reasonableness; the words "fair" and "reasonable" have their ordinary meanings. Whether a decision the subject of a public service appeal is 'fair and reasonable' is a question of fact.
[59]	Section 562C of the Industrial Relations Act prescribes the types of orders that the Commission can make. In deciding this appeal, the Commission may either confirm the decision appealed against, return it to the original decision maker, or substitute another decision. 
[60]	Having regard to Briginshaw v Briginshaw, the seriousness of the allegations and the potential gravity of both the findings and the consequences means that the decision-maker, in deciding whether the allegations were substantiated on the balance of probabilities, had to have strong evidence before him, and not just inexact proofs, indefinite testimony, or indirect inferences.
[61]	The allegations are serious and the potential consequences for the Appellant have significant gravity. In this case the decision-maker considers the allegations, given they are substantiated, give rise to grounds for and liability to discipline under the Public Service Act. It is considering, but has not decided, that the allegations, given substantiation, may warrant, inter alia, demotion, carrying a reduction in remuneration of around $16,000. Properly, no party disputes the proposition that Briginshaw v Briginshaw applies.
[62]	However, the Respondent argues that in considering the gravity of the consequences and therefore the strength of the evidence needed to substantiate the allegations it is relevant to note that in determining disciplinary action (as opposed to disciplinary findings) it will be able to take into account other considerations arising from the Appellant's history, and so the potential consequences might have been less grave but for that history. Notwithstanding this submission, the allegations against the Appellant are serious and so are the potential consequences for him if disciplinary findings are made, and so the decision-maker needed strong evidence before finding the allegations substantiated. 
Allegation A
[63]	To the extent that Allegation A was found to be substantiated the decision was not fair and reasonable. 
Mr Macann's account
[64]	Mr Macann provided his account of the events to the Respondent on several occasions including:
(a)	written responses provided on three occasions;
(b)	his interview of 25 January 2023; and 
(c)	the contemporaneous records created when attending patients. 
[65]	This means that there is a lot of material setting out his account of the events of the 15th of October. I will not recite it all verbatim here.
[66]	The phrase "don’t be a little bitch just get up" was originally put to Mr Macann for response by email of 23 January 2023, two days before the date of his interview. His evidence in his initial statement provided around the same time was:
When attending [patient] I have a high index of suspicion of his need for what I feel is inappropriate tactile reassurance, and thus physically distance myself in a manner to reduce the potential for such physical contact. [patient] is also a person of larger stature. I deny "standing over him" and stating "don't be a little bitch just get up". The scene was in a dimly lit public street and I was faced with three persons who admitted or indicated to having consumed a high volume of alcoholic beverages. I was unable to bring my stretcher safely any further than [patient's] driveway due to the nature of the terrain of his yard and grass verge, concerned that his physical size would render it impossible for me to load him into the ambulance. 
I recall that [patient] was exhibiting physical movements indicating that he may have been capable of standing with minimal assistance or without assistance at all and encouraging him to stand to move to my stretcher. I indicated to [patient] that if he was unable to stand without assistance that I would arrange attendance by QFES members for lift assistance to limit potential injury to myself, as is routine for QAS Moura Paramedics when required. Instead, bystanders who identified themselves as [patient's] housemates offered assistance to [patient] to stand, at which point he initially moved to the rear of a vehicle parked in his driveway…
[67]	Mr Macann gave the same account, virtually word-for-word, in his interview of 25 January as he had given in his written response. It seems likely he was reading from the written response in doing so. Some subsequent paragraphs from the interview transcript are also relevant here:
31. 	Interviewer	Yeah, okay. Did you have any conversations with those two other, you know let's call them young people that were on the scene, or bystanders? 	
32. 	Mr Macann	When I arrived the conversation was what's, you know g'day my name's Matt, how can I help you. That's generally the way that I'll approached a scene so I'm fairly confident that would have been my opening line. And they would have explained that and that's how I would have formed the opinion that he's come from a party because they would have told me. I've stood nearby and said look you know, if you can't get up, like I said in here, if you can't get up I'll get the firies, they'll be able to assist. He stood up, he's moved, I think it was to the left of where he was to, to the side of where he was behind his own vehicle or another vehicle in the driveway. Had a discussion with me about stuff other than pain or what have you, what was going on then. He at some point has moved to my stretcher were I've further assessed. 	
[68]	The interviewer subsequently asked Mr Macann about his experiences with the patient generally. 
[69]	Mr Macann said he had a "high index suspicion" with the patient because "he's an emotionally charged bloke when … he's either in pain or if he's got alcohol on board and/or illicit substances," though Mr Macann went on to say he could not confirm or deny the latter because they did not test for those.
[70]	He said the patient was a "regular consumer" of both Queensland Police Service and Queensland Ambulance Service services within Moura. He went on that QPS often transported the patient from the Moura community hospital for assessment and care relating to acute behavioural disturbances, often as a result of consuming high volumes of alcoholic beverages and suspected use of illicit substances. Mr Macann said he had thought, up until now, that he had enjoyed a "pretty good" rapport with the patient.
[71]	In the interview, having regard to the foregoing, the Appellant conceded to being "stern" and indicated his approach to this patient was to try to de-escalate while keeping a safe distance. 
[72]	Following the interviews, the Respondent again put the phrase "don’t be a little bitch just get up" to Mr Macann for response in the letter of 12 May 2023. He gave a further account in his May 2023 OTR response, which included:
As I approached [patient], I recall that he was rolling around on the grass verge outside the fence of a property and lifting his body in a manner that indicated he may have been able to stand of his own volition. I did not demand that [patient] get off the ground yet indicated that if he was unable to do so that I would contact QFES for lift assistance as I did not want to injure himself or myself in the process. Before I could contact QFES, [patient] was assisted to his feet by witnesses on scene who identified themselves as his flatmates and proceeded to walk past my stretcher and up the driveway of the property to the rear of a vehicle parked in the driveway. 
[73]	As indicated elsewhere in these decisions the allegation was then reformulated and put in the form of Allegation A in NTSC1, also set out in this decision. Mr Macann, having received the formal show cause notice, provided a fuller and more detailed account of the events of the 15th of October than he had previously given. He gave that account via his response in August 2023, i.e., around ten months after the events. In that response Mr Macann denied saying to the patient at any time the phrase now attributed to him in particular 1 of Allegation A, i.e., "stop being a little bitch." He confirmed particular 2, which referred to his own previous denials in his written statement, at interview, and in his May letter.
[74]	There is, unsurprisingly, no indication in the electronic Ambulance Report Form of the night in question that the Appellant used the language attributed to him in this allegation or anything similar. 
Reasons for decision
[75]	The decision-maker's reasons for finding this allegation to be substantiated were:
Having read your detailed response outlining your attendance at incident [number], I am still not convinced that the statements by two witnesses that you said the phrase "little bitch" to the patient were untrue. I realise that both witnesses were the patient's friends or flat mates, but I have no reason to doubt their recollection of events.
I note that your UWU representative surmises that Ms [Jones] and Mr [Smith] were possibly "intoxicated to some degree and that this intoxication would have impacted on their experience of the entire incident and their subsequent recollection of it."
However, I find it interesting that [Ms Jones]'s complaint, which was made the next day, states that you called the patient a "little bitch" and that [the patient's mother] also submits in her complaint that [Ms Jones] and [Mr Smith] told her that you had called the patient a "little bitch". Further, during their interviews, they recalled you using this phrase.
I have also formed the view that given you have admitted to saying "I don't want to use my "Dad voice" in a previous interaction with the patient, which was heard by [the patient's mother], as well as your admission that you felt frustrated in that interaction, that you calling the patient a "little bitch" could have occurred.
Therefore, I prefer the evidence of the witnesses [Ms Jones] and [Mr Smith] over yours and based on the information available to me, I consider this allegation is substantiated on the balance of probabilities.
Ms Jones' complaint
[76]	Ms Jones and Mr Smith were the patient's housemates. The written complaint of Ms Jones, made at 5.34 pm on 16 October 2022, the day after the incident, was as follows:
staff member was rude and quite unhelpful with incident, patient was clearly in a lot of pain and distress and the staff member said things such as "stop being a little bitch", "get off the ground or i leave you there/make you crawl to the stretcher", "i've dealt with with shit too many times now", "you're not in pain stop being dramatic", which then resulted in [redacted] being in much more distress causing the pain to worsen, the officer refused to take [redacted] to the hospital after several attempts from myself, my partner and roommate to get him there for further help. his excuse was that [redacted] "just wouldn't like the hospital and that didn't want to take him there" he also showed up at the premises alone which given the state of [redacted] me and my partner had to help him as the officer was just towering over him and decided to leave so he doesn't "waste time" and "doesn't get paid enough to deal with this shit".
		(Errors and redactions in original)
[77]	At interview on 13 December 2022, the following exchange occurred:
35. 	Interviewer 	Righteo, did, did, what was his language like? Was it loud or, swearing or? Was there any swearing or?	
36. 	Ms Jones	Just like he didn't care. 	
37. 	Mr Smith	Yeah. 	
38. 	Ms Jones	Can't really remember if he swore or not but I knew he was pretty rude. 	
39. 	Mr Smith	No, like one thing he said was, bitch, he called [patient] a bitch, didn't he? 	
40. 	Ms Jones	Oh, yeah, he called [patient] a little bitch, don't be a little bitch and just get up. 	
41. 	Interviewer	Okay. 	
42. 	Mr Smith	Yep. 	
43. 	Interviewer	Okay, yeah, no, you did write that in, in your account. 	
44. 	Ms Jones	Yep. 	
45. 	Interviewer	Did he say, did he swear at him at all or anything after that? 	
46. 	Mr Smith 	I don't recall, possibly but my memory's not too good. 	
47. 	Interviewer 	Yeah, that's alright.	
48.	Ms Jones	Yeah, me neither, that's why I made sure I wrote it as soon as it happened, like a little (ui).	
		(Errors in original)
[78]	The interviewer referred to Ms Jones' account. Ms Jones said, "I wrote it as soon as it happened, like a little (ui)." The Respondent pointed to this exchange as showing the content of the complaint was contemporaneous, but the complaint was not submitted until around twenty hours after Mr Macann arrived on the scene. The interviewer did not ask whether the complaint as submitted was a word-for-word transcription of notes written on the night of 15 October, or whether it was revised in the intervening hours between the event and the complaint being lodged. Because the interviewer did not ask, it would not have been apparent to the decision-maker whether the notes were contemporaneous or were affected by revisions over the subsequent twenty-hour period, coinciding with or after conversations with her partner and the patient's mother. The reasons in NTSC2 do not reveal that the decision-maker turned his mind to this issue in deciding to prefer this written complaint to the Appellant's evidence. 
[79]	The decision-maker did turn his mind to the witnesses' sobriety. He described the consumption of alcohol as something the union had surmised. It was uncontested, on the material before him, that Ms Jones and Mr Smith had had alcohol, albeit Mr Macann phrased this in different ways on the three occasions (January, May, and August 2023) on which he was invited to provide his information. The interviewer did not ask Ms Jones and Mr Smith how much alcohol they had had, and so that information was not before the decision-maker. He did not know the extent of any impairment they were under because of the alcohol. He takes as corroboration of Ms Jones' written complaint the patient's mother's complaint of later the same night. He also refers to the two housemates' recollection of the events. 
[80]	The patient's mother's complaint, made around 9.30 pm the night of 16 October, stated relevantly:
From the age of 17 my son ([patient's name]) suffers what we believe to be server stomach migraines and requires Buscopan or an intravenous anti-spasmodic to reduce or stop the pain. Over the past three years [patient] been treated for this on multiple occasions at Moura, Rockhampton, and Gladstone hospitals. On Saturday night 15/10/2022 [patient] had been at a party and was drinking, unfortunately when he got back to his mate's place at approximately 9.30 pm, [patient] suffered one of these pains. The friends [patient] was with have never seen him have these pains before, they didn't know what to do therefore they called for an Ambulance. I was told when the officer (Matt McCann) attended to [patient] he said that "he had dealt with him to the past and that he was suffering anxiety and to stop acting like a little bitch and to fucking grow up". [Patient's] friends stated 'Matt' made [patient] crawl on his hands and knees to the stretcher. [Patient's'] friends said they were horrified by the attending ambulance officer and the abuse and treatment of [patient]. The officer refused to take [patient] to the hospital for treatment. [Patient's] friends were going to take him to the hospital but called me at 10.14 pm instead. I took his medication (Buscopan Forte) to him, and the severity of [patient's] pains settled down within the hour however he still had slight pains but bearable he was also feeling sick. I stayed with [patient] for few hours until the pains had subsided and that he had settled down from the ordeal and was ready to sleep. From all reports from [patient's] friends that were present Matt McCann's bedside manner is appalling and swearing at any patient is unprofessional but to refuse his rights for treatment or at the very least to be checked out by the hospital is negligence and failed his duty of care as an ambulance officer. We have encountered Matt McCann previously when [patient] has suffered episodes of pain and even then, his actions were questionable. He stated one time that he didn't want to have to speak in his dad voice and another time when he was attending to [patient], he stated [patient] was not allergic to morphine even though he was told when [patient] is given morphine, he itches all over. My son who has ADHD and ASD, has been treated less than human and by all witnesses last night [he] was subject to bullying and discriminated from an attending officer and that is misconduct.
…
What action or result do you want? All of the above. I would like to see Matt disciplined for his treatment of my son. He is unprofessional and has no tolerance for him therefore I have no tolerance for a so-called professional like him. I would like to see the Queensland Ambulance take a stand against the type of behaviour and treatment of patients regardless of age and health issues. Their case of bullying and discrimination.
(Emphasis added, errors in original)
[81]	She does not say who told her of the "little bitch comment". The question of whether any issue arises from the difference between her description of the language and Ms Jones' is not resolved on the face of the decision in NTSC2. Because this is evidence as to what she was told, not as to what happened (given she was not present), it is also affected by the same question as to the housemates' level of intoxication and any consequent impairment.
[82]	Though the decision-maker relied upon Ms Jones' and Mr Smith's evidence at interview as corroborating Ms Jones' written complaint, their evidence at interview was that their recollections were poor. 
[83]	The Respondent submits that the written complaint was credible because the witness had no reason to embellish it, especially in a small community where she might see Mr Macann in the street or he might attend at their house. There is nothing on the material indicating the decision-maker considered this in making his finding in relation to Allegation A.
The interview with the two housemates
[84]	In finding this allegation substantiated the decision-maker gives significant weight to the evidence from Ms Jones and Mr Smith and prefers it to evidence from Mr Macann. In doing so he relies on the interview conducted with both housemates on 13 December 2022, in addition to the written complaint of 16 October 2022, referred to above. 
[85]	Both Ms Jones and Mr Smith were present at the same interview. I have taken Mr Smith to be the person referred to in Ms Jones' complaint as her partner. The Respondent also took this to be the case. The header on the pages of the interview transcript indicate it was an interview with Ms Jones, not Ms Jones and Mr Smith. I infer from this that it may have been intended, at the commencement of the interview, that Mr Smith would be in attendance as a supportive partner, not as a witness. Regardless, the interviewer went on to conduct the interview as though he was interviewing both of them. Subsequently, the decision-maker treated Mr Smith as a witness, in reliance on his contributions at this interview. The particulars of Allegation A in NTSC1 referred to Mr Smith's interview responses. In NTSC2, the decision-maker relied upon Mr Smith's contributions as part of the basis for finding Allegation A to have been substantiated. 
[86]	The union points to QAS's Workplace Investigations procedural document, which indicates that witnesses must not be interviewed together. Whether or not that procedure is binding, and whether or not a contravention of it of itself supports a finding of a lack of reasonableness, there are reasons why witnesses are generally not interviewed together, as the Appellant's submissions in reply point out. That these witnesses appear to have been in a personal relationship adds to this difficulty. The issues that might arise if witnesses are interviewed together are not necessarily insurmountable, but the decision-maker did not, on the face of the decision, deal with how he had considered and resolved any such issues, which might include, for example, the potential contamination of each other's evidence. 
[87]	The decision-maker did, however, reasonably and explicitly take into account that Mr Smith and Ms Jones were the patient's friends or housemates. 
[88]	The Respondent's submissions point out that the Appellant cannot rely on their having had alcohol to say that they would not have had proper recollections, on the one hand, but say they were sufficiently sober for the patient to be left in their care, on the other. The Appellant submits there are degrees of alcohol effect and that both submissions can be made. The Respondent's submission in this regard is more persuasive. The consequence of its submission is that if it says the pair had had alcohol and that made it inconsistent with the clinical practice guidelines for the patient to be left with them, then the decision-maker ought to have grappled with the lack of information before him as to any impairment they were under, and what that meant for the evidence upon which he relied.  
[89]	The decision-maker seems to have taken the following exchange, at interview, as meaning that both Ms Jones and Mr Smith recalled Mr Macann using this phrase.
[90]	The union says Ms Jones did not volunteer this information nor spontaneously offer it but was prompted. The Respondent agrees Mr Smith prompted Ms Jones but says this shows Mr Smith recalled the relevant words being said and was giving his own recollection of the events. The Appellant disagrees and says that it shows Mr Smith did not recall the comment, "but phrased it as a question in the manner of someone who was not quite sure what version of events they are supposed to tell."
[91]	The union says the decision-maker ought to have considered whether or not there was potential cross-contamination of evidence where partners were being interviewed together rather than being treated as witnesses. I agree that issue should have been considered given the weight that the decision-maker gave to their evidence, in preferring it to Mr Macann's.
Other witnesses, not interviewed
[92]	There are two references in Ms Jones' evidence to another person being present during the relevant events:
(a)	her complaint of 16 October refers to her partner and her roommate being present; and
(b)	her reference to a person, only by their first name (in place of which I will use the pseudonym "Jane"), at interview. 
[93]	More significantly the decision-maker did not give reasons as to why there was no evidence before him from the patient himself. The patient was a material witness. 
[94]	There may have been good reasons why there was no evidence from the patient or Jane before the decision-maker. For example, he could have considered the material he had was sufficient, or that the patient's evidence would have had little probative value given the patient had had eighteen standard drinks before Mr Macann's arrival, or he wanted to avoid causing the patient distress. However, there is nothing to show the decision-maker turned his mind to such questions. 
Events of 24 September 2020
[95]	As indicated above, the patient's mother, in her complaint of Sunday 16 October 2022, referred to events that had occurred on a previous occasion. These events were referred to in NTSC1 as particulars of Allegation A. The decision-maker relied upon the evidence in relation to these events as part of the basis for finding Allegation A to be substantiated.
[96]	Mr Macann attended on the patient and his mother on 24 September 2020. In her complaint of 16 October 2022 the patient's mother referred to these events as follows:
He stated one time that he didn't want to have to speak in his dad voice…
[97]	At interview on 13 December 2022, she referred to it as follows:
… then there was also another incident at [redacted] where we used to live and he was contact, well Ambulance was contacted for assistance then and he'd come in and [patient] was on the lounge room floor. Anyway, he was in pain, because when he goes down, he goes down and there's not, no getting him up. So, he kind of, because [patient] was being a little bit difficult and wouldn't get up, but he, it's like he physically can't type thing, I'm not sure, but anyway, so, that's where Matt kind of said, well, he didn't want to have to use his Dad voice type thing and what not and it's like, don't start.
[98]	The electronic Ambulance Report Form for the attendance on 24 September 2020 relevantly stated in the Narrative section of the form:
Presenting Complaint:	Called to 18yom c/- acute onset epigastric pain radiating RIF from approx 0100hrs this morning. QAS note that patient has presented with similar symptoms previously.	
Hx of Presenting Complaint:	On examination patient GCS 15, PEARL. Supine on lounge room floor. Highly vocal. Crying. Hyperventilating. Nil obvious trauma or traumatic injuries. States last meal lunch 1/7 ago. Nil recent consumption of alcoholic beverages. Nil use of illicit substances. Difficult to ascertain pain syndromes and history from patient due to vocalisations and hyperventilation, yet mother on scene appraised QAS. Administered Panadeine Forte and Buscopan at approx 0400hrs this morning. Bowel sounds active all quadrants. Patient capable of mobilising without assitance throughout, yet provided assistance by mother and QAS. 	
Examination:	Hyperventilative. All other VSS WNL. Gaurding R) abdomen. Highly vocal. Able to follow instructions/suggestions/commands. Nil visible trauma or traumatic injuries. 	
Disposition:	Minimal response from opioid analgesia. Patient continues to be highly vocal and hyperventilative. QAS also note that patient continued to access/use social media on his mobile phone throughout QAS intervention. 	
[99]	Mr Macann accepted that:
(a)	he had grown frustrated with the patient at that attendance; and
(b)	he had said words to the effect of "I don't want to use my dad voice." 
[100]	In his statement of around January 2023, he said:
The context of my stating words to the effect that "I don't want to use my Dad voice" were an expression of my wanting to reason with him at his own level as opposed to one which was superior or overbearing.
[101]	He reiterated that at interview, adding:
I did not want to, for it to be a negative thing there.
[102]	In his OTR response in May 2023, Mr Macann said:
The context of my stating words to the effect that "I don't want to use my Dad voice" were an expression of building frustration in myself of my wanting to calmly reason with [patient] at his own level as opposed to one which was superior or overbearing. To the best of my recollection I remember stepping back from [patient] and making the comment toward his Mother [mother's name] and not to [patient] himself, therefore I deny any imputation I communicated inappropriately to [patient].
[103]	The Respondent submitted that in these two accounts – the first from the January statement and the second from the OTR response in May – Mr Macann contradicted himself, and that the initial wording suggested Mr Macann had said this to the patient while the May document, he indicated he had said it to the patient's mother. However, I take the view that the later document was consistent with the earlier document in this regard, with Mr Macann elaborating on what he had said earlier. 
[104]	In his show cause response of 18 August 2023 Mr Macann denied he had said this phrase to the patient, agreed that particular 4 of Allegation A in NTSC1 correctly quoted from his earlier response, and further said:
I uttered the statement "I don't want to use my Dad voice" under my breath and with my face turned away from [patient] on an earlier interaction with [patient] in which he was considerably aggressive, belligerent and highly difficult to de-escalate. I had taken a step back from [patient] at this time to centre myself in a manner that I could afford [patient] the best respect and care I could with consideration that his aggressive and belligerent behaviour were the result of his pain syndromes at the time. I could feel at the time that I was becoming frustrated and felt I need to separate myself briefly to afford [patient] the most respect possible.
[105]	The decision-maker considered that the facts that the Appellant and was frustrated during this attendance, and had made the "Dad voice" comment, supported a finding that Mr Macann's calling the patient a "little bitch" could have occurred. 
[106]	At the hearing I canvassed with the parties whether the decision-maker was right to have considered this evidence and, if so, what inferences might have been able to be drawn from it. In advance of the hearing, I drew their attention to some recent authorities on the use of similar fact evidence in civil proceedings. 
[107]	In this case, the evidence as to the events of 24 September 2020 provides support for the proposition that the Appellant had a tendency to be frustrated by the patient not getting up from the floor. On the other hand, it shows he managed that frustration not by swearing at or insulting the patient, in the vein of calling him a little bitch, but by turning away and making a comment, with no profanity, directed to himself, albeit in the patient's mother's earshot. 
[108]	The frustration makes the fact alleged somewhat more likely but the manner of dealing with it makes the fact alleged somewhat less likely. The probative value of the evidence about this incident is therefore limited.
Summary (Allegation A)
[109]	In summary the Appellant says (my paraphrasing) that he:
(a)	considered the patient able to get up but told the patient if he could not get up then he (Mr Macann) would need to call QFES for assistance in helping the patient up rather than trying to help the patient up by himself;
(b)	was keeping his distance from the patient because he feels the patient to be inappropriately tactile with him;
(c)	was attempting to 'de-escalate' the patient;
(d)	is sometimes stern with the patient;
(e)	thought he had a pretty good rapport with the patient; and
(f)	did not say to the patient "stop being a little bitch," or "don't be a little bitch just get up."
[110]	Ms Jones' written complaint was to be treated with greater caution given the evidence that she had said she had been drinking, the lack of any exploration with her as to whether was affected by alcohol, and the lack of any question being put to her about when the written complaint was prepared and whether it had been revised following conversations with her partner and the patient's mother. 
[111]	The direct evidence Ms Jones provided at interview should have been treated with greater caution given she confirmed her memory of the events was poor and given the lack of any question to her about her sobriety. 
[112]	The evidence of Mr Smith should not have been taken as direct evidence of Mr Macann uttering these phrases. He was prompting his partner, who was the person being interviewed, in respect of her memory. Further, if Mr Smith's contribution was to be relied upon, he and Ms Jones should have been interviewed separately.
[113]	The decision-maker did not explicitly consider or resolve the issue of the lack of direct evidence from the patient himself. 
[114]	The patient's mother's evidence as to the events of 24 September 2020 was of limited if any probative value and, having regard to the application of Briginshaw as canvassed in the authorities referred to above regarding tendency evidence, it ought not to have been given significant weight in finding the allegation to have been substantiated. 
[115]	The evidence relied upon to find that Allegation A was substantiated was not sufficiently strong, having regard to Briginshaw. 
[116]	Having regard to the foregoing, it was not fair and reasonable to find that Allegation A was substantiated.
Allegation B
[117]	As stated above, Allegation B was that on 15 October 2022 the Appellant "acted inappropriately towards a patient by demonstrating little respect for the patient's situation and medical history." It is accompanied, in NTSC1, by seventeen paragraphs setting out particulars. I will not recite them.
[118]	The particulars were confusing. Many of the paragraphs of "particulars" of the allegation were restatements of responses that Mr Macann had previously provided, during the earlier investigation, without a clear indication of why or how those restatements were particulars of the allegation. The allegation itself is in general and broad terms. Particularising it should have shed light on, not clouded, what was being put to Mr Macann for response. Mr Macann has a right to procedural fairness including being given a proper opportunity to respond. A proper opportunity to respond requires a clear statement of the issues. 
[119]	The Directive required the Respondent to put Mr Macann on notice of the evidence to be relied upon against him. It is reasonable and convenient to include the pinpoint references to evidence alongside the particulars of the allegation, as was done in some paragraphs here. But where a given paragraph does not indicate how the evidence referred to in it shows Mr Macann failed to demonstrate respect for the patient's situation or medical history, or where it simply restates Mr Macann's earlier responses, it does not help in clearly stating the issues to which he must respond.
[120]	Reading the "particulars" of Allegation B, together with the allegation itself, one can perhaps infer that what is being alleged against Mr Macann is that he acted inappropriately towards the patient by demonstrating little respect for the patient's situation and medical history, in that he:
(a)	dismissed any diagnosis outside that of anxiety, and in doing so told the patient: 
(i)	"you're not in pain, stop being dramatic"; and/or
(ii)	that it was anxiety and that he wasn't in pain, he was fine, and it was just anxiety and that he'd be right;
(b)	failed to help the patient up off the ground, and in that regard:
(i)	"towered over" or stood over everyone including when Ms Jones was on the ground assisting the patient;
(ii)	said to the patient "get off the ground or I leave you there/make you crawl to the stretcher" and/or told him "to get up and to crawl to the stretcher and that he wasn't going to help [patient] out to get up";
(iii)	disregarded the patient telling him that he could not get up;
(iv)	stated that he was not going to help the patient up; and
(v)	failed to bring the stretcher closer to the patient.
[121]	It also seems to have been alleged that as a consequence of his conduct, it fell to Ms Jones and Mr Smith to try to assist the patient to the stretcher, and: 
(a)	when they did so initially, the patient went back on the ground again; and 
(b)	Ms Jones and Mr Smith subsequently helped the patient to the stretcher.
[122]	Beyond that, it is not clear from the face of the notice what other conduct, if any, was said to give rise to the allegation. When I put this to the Respondent's representative she submitted that Mr Macann would have known what was being alleged against him because he was there that night and knew what had happened. The Respondent submitted that it could be inferred that the allegation was clear enough because Mr Macann responded rather than asking for the allegation to be further explained. 
[123]	It was not up to Mr Macann to guess or infer what was being alleged against him. The Respondent was asking him to show cause why disciplinary findings should not be made. In doing so it needed to clearly state to him the bases on which disciplinary findings may be made, in order to afford him procedural fairness.
Reasons for decision
[124]	NTSC2 gives the decision-maker's reasons for finding this allegation to be substantiated as follows:
I have read your detailed synopsis of your attendance at this case, and I am unclear why you failed to recognise the vulnerability of this patient.
In your own words, you admit you "recognised and am familiar with him from multiple previous interactions" both as an attending paramedic and "coincidentally" being present at Moura Hospital. Further, you seem to be very familiar and provide significant detail of the patient being " physically violent", "consistently demonstrated verbally aggressive behaviour that necessitates considerable de-escalation and emotional support", to the point where you say you "did not feel safe getting too close to [patient] without the assistance of the Moura QFES".
Given your evidence that the patient has been physically violent and aggressive towards you before, I made enquiries as to whether you had reported this behaviour after previous attendances, to ensure the safety of yourself and others. However, I did not find any such evidence.
Your response reads as though this call out was an annoyance on a rainy evening and the tone of your response is consistent with that. I see no evidence that your priority was the patient and alleviating his reported pain. Given your familiarity with this patient and that you had access to the Queensland Health database, The Viewer, you could have checked the patient's medical history at any time while on the job; however, you did not.
Based on the information available to me, I consider this allegation is substantiated on the balance of probabilities.
[125]	As can be seen from the reasons for decision the decision-maker found that Mr Macann failed to recognise the patient's vulnerability despite being familiar with the patient. Mr Medlin also found that Mr Macann's priority was not the patient and alleviating his reported pain. There is a criticism of him for failing to look at The Viewer which seems to be taken as showing Mr Macann's priority was not the patient and alleviating his reported pain. These findings and comments appear to go to the issue of whether Mr Macann dismissed any diagnosis other than anxiety.
[126]	The third paragraph may be a tacit finding about the issue of whether Mr Macann failed to help the patient up and to the stretcher, but this is not clear. 
Vulnerability, patient's situation, patient's medical history
[127]	The decision-maker does not seem to have said anything about for which part or parts of the patient's situation or medical history the Appellant demonstrated little respect. He does however find that Mr Macann had failed to recognise the patient's vulnerability. He also finds that there was no evidence that Mr Macann had prioritised the patient or alleviating the patient's reported pain. The reasons for those findings are not made clear on the face of the decision. Reading those findings with the allegation and the particulars, and reflecting on the parties' submissions, I can perhaps infer that Mr Macann was being criticised for: 
(a)	diagnosing anxiety and intoxication rather than considering some other pain-causing condition with which he should have been familiar, and 
(b)	administering paracetamol rather than Buscopan for the patient's pain. 
[128]	The Appellant recorded at least one vulnerability, in relation to mental health matters (a reference to preexisting anxiety, depression, and panic attack), on the face of the electronic Ambulance Report Form for 15 October 2022, as set out above. When I asked the Respondent's representative about the vulnerability finding she indicated mental health matters made for a vulnerable patient and so does alcohol intoxication. She said the failure to transport the patient showed Mr Macann had not recognised his vulnerability. It was not clear from the face of NTSC1 that the failure to transport was part of the basis for Allegation B or and nor was it clear in the reasons that it formed part of the basis for finding that allegation to have been substantiated. The narrative section of the eARF and the diagnosis section explicitly refer to the alcohol use (referring to 18 standard drinks and giving a secondary diagnosis of alcohol intoxication). 
[129]	As to the alleviation of pain, the documentary evidence shows that on Mr Macann's arrival the patient was collapsed, had shortness of breath/difficulty breathing and chest pain. In the section of eARF, going to past medical history, Mr Macann had listed under medications "Buscopan." The eARF records a pain score of 4/10 two minutes after Mr Macann's arrival. Eleven minutes after that, at 21.50, it shows the administration of paracetamol. At the same time, 21.50, the pain score is recorded at 0/10. 
[130]	The diagnoses recorded were panic attack and intoxication. A different diagnosis may or may not have been preferable. It may or may not be that even though the administration of the paracetamol coincided with the pain score dropping from 4/10 to 0/10, Buscopan should have been administered instead of paracetamol. These issues do not appear to have been put squarely to Mr Macann and nor do they appear to have been before the decision-maker. Neither Mr Macann, nor the decision-maker, nor an external reviewer should have to read between the lines to work out what is being alleged or why adverse disciplinary findings have been made. 
[131]	Mr Medlin also criticised Mr Macann's failure to check the Queensland Health database via a platform called The Viewer while on the scene on the night of 15 October 2022. It was not clear to me whether and if so the extent to which Ambulance officers are required to check patients' medical history via "The Viewer" while attending on a patient. The Respondent's submissions refer to times at which the Appellant "could have" checked The Viewer but stop short of saying he was required to do so. I explored this with the parties about this at hearing. The Respondent tendered a further Clinical Practice Guideline, going to standard cares, and made submissions. In the course of those submissions the Respondent's representative said:
The discussion regarding the Appellant having access to The Viewer was in relation to the Appellant claiming he was not aware of the patient’s disabilities, as he has never been told them by either the patient or his mother on previous presentations. Accessing The Viewer was the way in which he could have informed himself while at the scene. It was the Appellant’s view that he did not have the opportunity to access The Viewer whilst on scene; however, it is the Respondent’s view that there was an opportunity while the patient was sitting calmly on the stretcher or once the Appellant was in his vehicle but had not yet left the scene.
(Emphasis added)
[132]	This latter paragraph appears to be a reference to the following paragraph from Mr Macann's show cause response:
14. This complaint alleged that I was previously aware of [the patient's] disabilities. Prior to the lodgement of this complaint, I had not been appraised by [the patient] or [the patient's mother] of specific diagnoses relating to [the patient's] generalised abdominal pain, or any other history of disabilities. I was only aware that he suffered generalised abdominal complaints, and anxiety, due to his aggressive, belligerent presentations.
[133]	This was, in turn, in response to paragraph 14 of the particulars of Allegation B. That "particular" was itself just a restatement of something that Mr Macann had included in his written statement of January 2023, provided during the earlier investigation process. The relevant passage from Mr Macann's January statement was not about the events of 15 October 2022, but instead was about the events of 24 September 2020, the "dad voice" occasion. 
[134]	In other words, the issue as between the parties about the failure to look at The Viewer on the night of 15 October 2022 arose from something Mr Macann had said in January 2023 about the events of 24 September 2020.
[135]	Regardless, the union says that it was not practical for the Appellant to look at The Viewer during the attendance given the context (being the sole officer in attendance, the patient's intoxication and demeanour). The Respondent disagrees.
[136]	What is still unclear to me is how it could be fair and reasonable for Mr Medlin to rely upon the failure to look at The Viewer, as part of the basis for finding Allegation B to have been substantiated, when there is nothing in NTSC1 or any subsequent communication to the Appellant, prior to NTSC2, putting him on notice of the issue and giving him an opportunity to be heard in relation to it.
Failure to physically help the patient up and/or to the stretcher
[137]	The Appellant had relied upon the patient's claimed violence and aggression as part of the Appellant's justification or excuse for not helping the patient up and to the stretcher.
[138]	The purpose for which the decision-maker characterised the Appellant's evidence as being that the patient had been physically violent and aggressive towards the Appellant before and then doubted this proposition, is not clear on the face of the decision. 
[139]	Reading the Appellant's materials, the particulars of allegation B as set out in NTSC1, and the decision together, I infer that in this decision the decision-maker was rejecting this part of the justification and/or excuse for the failure to help the patient up and/or to the stretcher. I take this to mean there was a tacit finding that Mr Macann ought to have helped the patient up and to the stretcher (or ought to have called the QFES for assistance). 
[140]	It is difficult to see how the decision-maker could have disregarded the Appellant's uncontested evidence as to the patient's past violence and aggression based on a lack of reports. The uncontested evidence included:
(a)	that the patient was a regular consumer of QPS and QAS services relating to acute behavioural disturbances; and
(b)	that the patient was often vocally and physically aggressive, had been violent towards others and inanimate objects, yet not to the Appellant.
[141]	Ms Jones said the patient was "punching the ground" when the Appellant arrived, which is consistent with the Appellant's stated concerns about violence and aggression.
[142]	The decision-maker did not fairly characterise the evidence as being that the patient had been physically violent and aggressive towards the Appellant before. In the third paragraph of his decision regarding Allegation B the decision-maker said:
Given your evidence that the patient has been physically violent and aggressive towards you before …
[143]	Despite this comment, Mr Macann had not given evidence that the patient had been physically violent and aggressive towards Mr Macann before. The Respondent conceded that this was an error.
[144]	In making the findings in relation to Allegation B, the decision-maker also failed to take into account the other justifications or excuses the Appellant had relied upon as his basis for refraining from helping the patient to his feet and to the stretcher, including:
(a)	his view that the patient was able to get to his feet and to the stretcher unassisted;
(b)	his past experience of the patient's inappropriate tactility and desire for hugs and physical contact; and
(c)	the patient's size (height and weight), and his apprehension of the risk of physical injury to himself or the patient if he helped the patient up.
[145]	I asked the Respondent's representative about this at the hearing. In the course of her response we had the following exchange: 
COMMISSIONER: But what about the other three reasons?  So what about the reason that he felt the patient could get up unassisted?
MS WHITE: Well, that’s a good point.
COMMISSIONER: No, but he       
MS WHITE: Probably should have been discussed.
COMMISSIONER:   I’m saying he doesn’t deal with it on the face of the decision       
MS WHITE: No.
COMMISSIONER: does he?  And the next point that he felt that the patient was prone to inappropriate tactility and wanting hugs and personal contact, that’s not dealt with either and then what I consider to probably be the most important point, the concern about risk to injury to Mr Macann if he       
MS WHITE: Yeah.
COMMISSIONER: lifts someone of the patient’s size and weight alone without       
MS WHITE: Yeah.
COMMISSIONER: waiting for QFES.  It’s just not       
MS WHITE: Dealt with, no.
[146]	Mr Macann's evidence was that he intended to call the Queensland Fire and Emergency Services for support if the patient could not get to his feet unassisted but before matters reached that point the housemates helped the patient to his feet, and then the patient walked past the stretcher and up the driveway. Mr Macann says the patient walked past the stretcher unassisted. In his show cause response the Appellant said "I did not feel safe getting too close to [patient] without the assistance of the Moura QFES (Queensland Fire Emergency Service)."
[147]	The Appellant was permitted to, and had a duty to, take reasonable care for his own safety, as well as to seek to avoid adversely affecting the patient's safety. 
[148]	In deciding whether the allegation was substantiated, the decision-maker should have considered the justifications and/or excuses that the Appellant put forward. 
Comments on the tone
[149]	The union takes issue with the decision-maker's comment on the tone of Mr Macann's response. They considered the comment not to display fair treatment. The Respondent considers it was a fair part of the exercise of weighing the evidence, and that the decision-maker was entitled to have regard to consider the Appellant's behaviour during the investigation and show cause process. I agree that tone and demeanour can potentially assist a decision-maker in assessing credit in disciplinary matters where there are competing accounts (though there are well-known reservations about how useful tone and demeanour are for that purpose). 
Summary (Allegation B)
[150]	The allegation was broadly drawn, and the particulars so confusingly written, as to fail to afford the Appellant a proper opportunity to respond. 
[151]	The documentary evidence favours a finding that Mr Macann did recognise vulnerabilities on the patient's part. It favours a finding that Mr Macann did seek to alleviate the patient's pain by the administration of paracetamol, which coincided with the pain score dropping from 4/10 to 0/10. There is nothing on the face of the decision to indicate what evidence if any the decision-maker relied upon to make findings to the contrary. 
[152]	The Respondent did not put to Mr Macann the issue of whether his failure to look at The Viewer could form part of the basis for finding Allegation B to be substantiated.
[153]	The Appellant put forward four justifications or excuses for his failure to assist the patient up from the ground, and to the stretcher. The decision-maker misapprehended one and failed to consider the other three.
[154]	Having regard to the foregoing, it was not fair and reasonable to find that Allegation B was substantiated.
Allegation C
[155]	It was fair and reasonable for the decision-maker to find, as he did, that Allegation C was substantiated.
[156]	In NTSC1, seventeen paragraphs of particulars were provided for Allegation C. These paragraphs give rise to some of the same issues as those set out above in relation to the particularisation of Allegation B. However, it is apparent that the allegation substantially goes to the failure to transport the patient to hospital in contravention of the QAS Clinical Practice Guidelines in relation to alcohol. The reasons for decision in NTSC2 are exclusively about the failure to transport. 
[157]	Unlike Allegations A and B, the possible ground for discipline relied upon for Allegation C was the part of cl 3.1 of the Code of Conduct going to adherence to the policies, organisational values, and organisational documents of our employing agency. This is consistent with this Allegation being substantially about whether the failure to transport contravened Clinical Practice Guidelines. 
[158]	In NTSC1 the Clinical Practice Guideline Toxicology and Toxinology / Alcohol – Ethanol ("the Alcohol Guideline") is expressly cited. As stated elsewhere in this decision the wrong version of the Alcohol Guideline was provided alongside NTSC1. I do not consider this to give rise to any unfairness because:
(a)	the version provided was in materially the same terms; and
(b)	an Ambulance Officer of Mr Macann's experience would be expected to be familiar with this clinical guideline.
Reasons for decision
[159]	Allegation C, as stated above, was that the Appellant on 15 October 2022 failed to provide adequate clinical care. The decision, set out in NTSC2, is narrower than what may have been contemplated when the allegations and particulars were drafted. The decision focussed on whether the Appellant failed to comply with the two clinical practice guidelines. The reasons for decision were set out in NTSC2 and it is not necessary to recite them here. 
[160]	The decision did not go to issues of whether the Appellant should or should not have made the diagnoses of panic attack and alcohol intoxication, whether he should have made further or other diagnoses, or the question of whether medical history had been inconsistently recorded. It was fair and reasonable for the decision-maker to confine himself as he did. 
The Alcohol guideline
[161]	As to the question of whether the Appellant failed to act in accordance with the Alcohol Guideline, the decision-maker traversed the evidence that he relied upon to consider that the Appellant did not follow the requirements that the patient be able to walk unassisted, able to maintain their own safety, and left in the care of a responsible and sober person. 
[162]	The Respondent submitted that for the purposes of the Alcohol Guideline the word "sober" meant the person had to have had no alcoholic drinks at all. In contrast the union submitted there was a degree of subjectivity on the part of the ambulance officer in assessing whether someone was sober. I do not need to decide this issue because as set out above the decision-maker had uncontested evidence before him that the housemates had consumed alcohol, and on Mr Macann's own case they were sufficiently affected by alcohol to cast doubt on their experiences and recollections for the purposes of Allegation A.
The Non-transport Guideline
[163]	Having found that the Alcohol Guideline required transfer to hospital in the circumstances, the question was whether transfer to hospital was refused, and, if so, what should have happened. 
[164]	The decision-maker noted that paragraph 17 of Mr Macann's show cause response stated "Given that [patient] refused transport and was assessed by myself as not requiring further transport given that his flatmates were on scene and agreed to monitor him further, I provided suggestions to [patient] and his housemates in a manner routine to all patients who refuse treatment or transport." 
[165]	The decision-maker then went on to consider what is required when a patient refuses transport to a hospital or other health facility. In doing so he had regard to Clinical Practice Guideline – Other / QAS Non-transport ("the Non-transport Guideline"). This guideline was neither referred to in NTSC1 nor provided alongside it. 
[166]	The union submitted the failure to put the Appellant on notice of this Guideline gave rise to unfairness. The Respondent disagrees and points out that: 
(a)	the Appellant had raised the non-transport guideline himself in his May 2023 OTR response letter;
(b)	the Appellant had referred to the VIRCA process (an acronym for voluntarily, informed, relevant, capacity, and advice) in his show cause response, and that the VIRCA process is set out in the non-transport guideline; and
(c)	Mr Macann had 17 years of experience and would have been trained in relation to the guideline.
[167]	I accept the Respondent's submissions. I do not consider the failure to refer to the Non-transport Guideline in NTSC1 or in a subsequent communication prior to the decision being issued to render the findings in relation to Allegation C unfair.
[168]	The decision-maker gives the following reasons for finding Mr Macann breached the Non-transport Guideline:
Clinical Practice Guideline – Other/QAS Non-transport specifies the process an ambulance clinician is to follow when a patient refuses transport to a hospital or other health facility. In particular, the Guideline requires that the ambulance clinician must comprehensively document the following details on the eARF:
•	Clinical assessment findings; and
•	Outcome of the QAS VIRCA process (Voluntary, Informed, Relevant, Capacity and Advice).
In paragraph 17 of your response, you detail the process you say you followed aligning it to the VIRCA process; however, this is not documented in eARF [report number] as required. Instead, the eARF only contains a notation of "Transport not required following paramedic assessment." I am therefore persuaded that you did not follow the requirements of Clinical Practice Guideline – Other/QAS Non-transport in relation to this matter.
[169]	These reasons are fair and reasonable.
[170]	In respect of Allegations A and B it was not necessary to consider the union's assertions as to bias on the part of the decision-maker. In relation to this allegation, I do not consider the Appellant has demonstrated any bias on the part of the decision-maker, and nor do I consider that his reasons give rise to any perception of bias. 
Summary (Allegation C)
[171]	In summary, as to Allegation C: 
(a)	reading the allegation and the particulars as a whole, the Appellant was sufficiently on notice of the issue of whether his failure to transport the patient contravened the Clinical Practice Guidelines to be able to have a fair opportunity to respond in that regard;
(b)	the decision-maker took into account the Appellant's responses on this issue; and
(c)	the decision-maker was persuaded, fairly and reasonably, that the Appellant did not follow the Non-Transport Guideline;
(d)	it was fair and reasonable for the decision-maker to find, on the basis upon which he relied, that the allegation that the Appellant had failed to provide adequate clinical care was substantiated.
[172]	Accordingly, the decision to find that Allegation C was substantiated, for the reasons set out in NTSC2, was fair and reasonable. 
Conclusion
[173]	For the reasons I have given, the decision was not fair and reasonable in that Allegations A and B were found to be substantiated. The decision should be set aside.
Order
[174]	I make the following orders:
1. The decision appealed against is set aside.
2. The decision appealed against is substituted with the following decision:
(a)	 Allegations A and B are not substantiated.
(b)	 Allegation C is substantiated.