Purcell v The Health Secretary on behalf of NSW Ambulance [2020] NSWIRComm 1065

Industrial Relations Commission New South Wales Medium Neutral Citation: Purcell v The Health Secretary on behalf of NSW Ambulance [2020] NSWIRComm 1065 Hearing dates: 1 and 2 September 2020 Date of orders: 28 September 2020 Decision date: 28 September 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Appeal allowed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL – three allegations of misconduct against Duty Operations Manager – one allegation substantiated by employer – temporary reduction in classification for 12 months imposed – allegation not proven to requisite standard of proof on the evidence before the Commission – appeal allowed Legislation Cited: Industrial Relations Act 1996 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Texts Cited: Nil Category: Principal judgment Parties: Eamonn Purcell (Appellant)

The Health Secretary on behalf of NSW Ambulance (Respondent) Representation: Ms O Forsyth-Sells (Appellant)

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. 1. 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. 1. 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. 1. 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. 2. 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. 3. 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". 4. 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. 1. 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. 2. 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"). 1. 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). 2. 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. 1. It is from this decision, and the disciplinary and remedial action outlined above, that the appellant has appealed to this Commission.