Bennallack v State of Queensland (Queensland Health) [2026] QIRC 3

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION PARTIES: Bennallack v State of Queensland (Queensland Health) [2026] QIRC 003 Bennallack, Andrew (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2025/142 PROCEEDING: Public Service Appeal – Appeal against a fair treatment decision DELIVERED ON: 15 January 2026 HEARING DATES: 8 October 2025 DATES OF WRITTEN SUBMISSIONS: Appeal Notice (18 July 2025) Respondent's submissions (4 August 2025) Appellant's submissions in reply (11 August 2025) Respondent's submissions in reply (25 August 2025) Appellant's further submissions (3 November 2025) Respondent's further submissions (10 November 2025) MEMBER: Pidgeon IC HEARD AT: On the papers ORDERS: The orders contained in paragraph [117] of these reasons for decision CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a -- 1 of 25 -- 2 fair treatment decision – where the Appellant is employed as a Registered Nurse – where the Respondent found that one allegation gave rise to grounds for discipline pursuant to s 91(1)(g) of the Public Sector Act 2022 (Qld) – where the Respondent found that the second allegation gave rise to grounds for discipline pursuant to s 91(1)(b) of the Public Sector Act 2022 (Qld) – where the second show cause notice is set aside – where the ground for discipline identified by the decision- maker for each allegation is set aside – where the ground for discipline is found to have arisen under s 91(1)(h) of the Public Sector Act 2022 (Qld) LEGISLATION AND OTHER INSTRUMENTS: Crime and Corruption Act 2001 (Qld) s15(1) Directive 01/24: Workplace Investigations Directive 05/23: Discipline Industrial Relations Act 2016 (Qld) s 562C(1)(c) Public Sector Act 2022 (Qld) s 91(1) CASES: Briginshaw v Briginshaw [1938] 60 CLR 336. Coleman v State of Queensland (Department of Education) [2020] QIRC 32 Geary v State of Queensland (Queensland Health) [2024] QIRC 250 Malcolm v State of Queensland (Queensland Health) [2024] QIRC 097 Van Berkel v State of Queensland (Queensland Health) [2023] QIRC 264 Nield v State of Queensland (Queensland Health) [2023] QIRC 294 -- 2 of 25 -- 3 Reasons for Decision Introduction [1] On or about 11 December 2024, at a hospital within the Metro South Health and Hospital Service ('the Health Service'), there was an incident where a patient was struck multiple times by Mr Leong, a Safety and Response Officer ('SRO') during a restraint. Mr Bennallack ('the Appellant') was present during the restraint in his role as a Registered Nurse employed by State of Queensland (Queensland Health) ('the Respondent'). [2] On 30 June 2025, following a show cause process, Mr Bennallack was informed that two allegations had been substantiated: Allegation 1: You failed to report that a Safety and Response Officer struck a patient multiple times during a restraint occurring on or about 11 December 2024. Allegation 2: On or about 11 December 2024, you failed to intervene when a Safety and Response Officer struck a patient multiple times during a restraint. [3] The decision-maker has split the restraint event the subject of both allegations into two incidents. Incident One occurred at approximately 20:45 and involved Mr Leong, an SRO striking a patient a number of times. Incident Two occurred at 20:48 and involved the same SRO making contact with the patient's face approximately two or three times. [4] The decision-maker has found that in failing to report the incident, Mr Bennallack contravened the Crime and Corruption Act 2001 (Qld) ('the CC Act') and may be disciplined pursuant to s 91(1)(g) of the Public Sector Act 2022 (Qld) ('the PS Act') and that in failing to intervene, Mr Bennallack is guilty of misconduct pursuant to s 91(1)(b). The decision-maker proposes to terminate Mr Bennallack's employment. [5] For the following reasons, I have determined that it was fair and reasonable for the decision-maker to find that the Allegations are substantiated. I have set aside the ground for discipline identified by the decision-maker and substitute a decision that both Allegation 1 and Allegation 2 give rise to discipline pursuant to s 91(1)(h) of the PS Act. I order that within 21-days, the second show cause notice be reissued reflecting these reasons for decision The decision [6] With regard to Allegation One, that Mr Bennallack failed to report the incidents, the decision-maker found: Having considered all of the information available, including your response, I have determined that, on the balance of probabilities, allegation one is substantiated on the following basis: -- 3 of 25 -- 4 I have considered the information available and what might be required to reasonably substantiate the allegations. It is not disputed that the CCTV footage demonstrates that Mr Leong struck the patient on two occasions. The timestamp from the CCTV and BWC footage confirms that the interaction occurred on 11 December 2024. Finally, your response confirms that you did not make any reports, including verbal reports to Mr Catterick or anyone else, regarding the restraint. Within the context of the above, I have considered your response to determine whether you have provided information that disputes the allegations or provides a reasonable excuse for the alleged conduct. I accept your response that Mr Catterick was the Clinician-in-charge of the restraint and that standard protocol is that a single RiskMan documents the events and subsequent interventions. I also accept that Mr Catterick undertook the reporting activities related to this restraint. However, I do not consider that this absolves you of all responsibility or obligation to report inappropriate conduct that you witness within the workplace. To this point, in your response you have stated If I had noticed Mr Leong's conduct, I would have immediately raised it to the attention of my Nurse Unit Manager. In my view this demonstrates that you understand that you maintained an obligation to report inappropriate conduct to your Nurse Unit Manager, despite Mr Catterick (or the Clinician-in-charge) undertaking the task of formally reporting the restraint. I have also considered your response that you did not notice Mr Leong's conduct and that during the restraint you were sweaty and had fogged up glasses. I have considered the information available in the context of your response and do not accept that you did not notice Mr Leong strike the patient on both occasions at approximately 20:45 hours and 20:48 hours. For clarity and transparency, I will address each incident and the information available separately so you may understand my decision-making process. [7] The decision-maker goes on to provide detailed reasons for the decision regarding both Incident One and Incident Two: Incident One I will refer to the incident occurring at approximately 20:45 hours as incident one. The CCTV footage shows that at the time, you were positioned next to Mr Anyakora, opposite Mr Leong. You have stated in your response that you did not notice Mr Leong strike the patient due to you being sweaty, and your glasses fogging up. However, you admit to retrieving Mr Leong's BWC after it fell off while he was striking the patient. In my view, the CCTV and BWC footage both show you actively engaged in the restraint. Mr Leong commenced striking the patient at 20:45:33 hours, which was approximately one minute after the restraint commenced. The time that Mr Leong was striking the patient was approximately 15 seconds. Mr Leong delivered approximately eight strikes over seven seconds, there was a pause, and the final strike was delivered at 20:45:48 hours. The CCTV shows that you retrieved Mr Leong's BWC at 20:45:36 hours. I do not accept that you noticed Mr Leong's BWC had fallen off, saw where it landed, then were able to reach over the patient to successfully retrieve it, and that you were aware of the positioning of others and what they were saying but did not notice Mr Leong strike the patient approximately nine times over a 15 second period. -- 4 of 25 -- 5 In regard to your response that you were sweaty and that your glasses had fogged up, I do not accept that this is a reasonable excuse for your assertion that you did not notice Mr Leong strike the patient. Mr Leong struck the patient at approximately 20:45, one minute into the restraint. I do not accept that within one minute, you had become so sweaty that your vision was impaired to the extent that you would not have been able to notice Mr Leong striking the patient approximately nine times. In addition, I do not accept this response as a reasonable excuse as your vision was not impaired when you noticed Mr Leong's BWC fall off while he was striking the patient, or when you leaned over the patient to successfully retrieve it. Incident Two In respect to incident two, occurring at approximately 20:48 hours, you have stated that you were positioned at the patient's legs, had stood up and looked away and begun returning towards the patient's head once Mr Leong had concluded striking the patient. You also admitted to hearing the statement 'Justin, Justin, hey, hey, hey'. The CCTV footage confirms that the time it took Mr Leong to strike the patient at least twice in quick succession was approximately three seconds, specifically 20:48:33 hours to 20:48:36 hours. During this time, the CCTV footage shows that you were moving towards the patient's head while looking at Mr Leong and the patient. While you have viewed the CCTV and BWC footage I have attached screenshots of the CCTV footage along with Mr Anyakora's BWC footage for the period in which incident two occurred so you may understand how I have formed this view (Attachment One). Prior to incident two, while attempts were made to move the patient away from the sliding glass door, the CCTV footage shows that at approximately 20:48:30 hours, you stood up and looked away. However, at 20:48:33, the CCTV footage shows that you were looking towards the patient's head. The combination of CCTV footage and your admission to hearing the comments 'Justin, Justin, hey, hey, hey', I am satisfied that you were looking in the direction of Mr Leong while he was striking the patient and that on the balance of probabilities were able to notice Mr Leong strike the patient. I have further considered your assertion that as you were sweating and had fogged glasses, you did not notice Mr Leong strike the patient. I accept that it is reasonable for you to have become sweaty during the restraint at this stage. The restraint occurred in the North Wing Courtyard during the summer month of December. I have reviewed the available information specifically to consider whether the information supports that you had become so sweaty that you would have been unable to notice Mr Leong strike the patient. The CCTV footage shows that you engaged in the restraint immediately upon its commencement at approximately 20:44 hours and remained engaged until 20:48:30 hours when you stood up. However, you did not immediately wipe your face or your glasses. The CCTV footage shows that you did not wipe your face until 20:50 hours while you were holding the patient's head. On that basis, while I appreciate that you may have been sweaty at the time of the second incident, you did not wipe your face until two minutes after incident two occurred. On the balance of probabilities, if you were so sweaty to the extent that it was interfering with your vision, I consider that you would have wiped your face at the earliest opportunity upon standing. As you did not do so until two minutes after standing, I find it completely implausible that even though you were looking directly at the patient's head area, you were so sweaty that you did not notice Mr Leong strike the patient in said head area. Having determined on the balance of probabilities that it is more likely than not that you did see Mr Leong strike the patient, that you were aware of your obligation to report inappropriate conduct and I am satisfied based on your admissions, that you did not report this matter. -- 5 of 25 -- 6 Accordingly, I am satisfied that the allegations are reasonably capable of substantiation. [8] With regard to Allegation Two, that Mr Bennallack failed to intervene when Mr Leong struck the patient multiple times during the restraint, the decision-maker found: Having considered all of the information available including your response, I have determined that, on the balance of probabilities, allegation two is substantiated on the following basis: My consideration in respect to allegation two focuses on a failure to intervene and I rely on the detailed consideration provided for Allegation One in respect to Allegation two. Specifically, that on the balance of probabilities I have determined that it is more likely than not that you noticed Mr Leong strike the patient during the restraint. It is on this basis that your failure to intervene is considered. Aside from your admissions in respect to failing to intervene, I consider that the above points provided in response to Allegation two have been addressed in my consideration of Allegation one. Consequently, as you have admitted to not intervening for the patient during the restraint and the information available supports that, on the balance of probabilities, you did notice Mr Leong strike the patient, I consider that there is sufficient information to substantiate this allegation. I considered that the substantiated conduct is a significant deviation from the standard of care that MSAMHS provides to your patients and consumers. Objectively there are no circumstances in which striking a patient would be acceptable or reasonable or that any health service employee would consider striking a patient as acceptable or reasonable. I find that you witnessed the patient being struck multiple times by an MSH employee who was supposed to be assisting in the provision of care and failed to intervene or take any action. I consider this is so significant a deviation from accepted standards of care and MSH values that it represents indifference to your obligations as a Registered Nurse and health service employee of MSAMHS. [9] The decision-maker found that Allegation One gave rise to grounds for discipline pursuant to s 91(1)(g) of the PS Act and that Allegation Two gave rise to grounds for discipline pursuant to s 91(1)(b) of the PS Act. Mr Bennallack was invited to show cause as to the proposed disciplinary action of termination of his employment. Mr Bennallack's reasons for appeal [10] In his Appeal Notice, Mr Bennallack sets out a number of reasons he says the decision was not fair and reasonable. [11] Mr Bennallack says that the decision is not fair and reasonable as the Respondent did not conduct an extensive investigation in respect of the Allegations. Mr Bennallack says that the CCTV video footage that was reviewed did not provide sufficient evidence for the decision-maker to make the relevant findings.1 1 Appeal Notice filed in the Industrial Registry on 18 July 2026, Schedule [12]. -- 6 of 25 -- 7 [12] Regarding the reasons provided by the decision-maker relating to Incident One, Mr Bennallack says that the decision-maker had no reasonable basis for rejecting his position that his glasses had fogged up, and that he could not see the striking.2 [13] With regard to Incident Two, Mr Bennallack says the decision-maker's conclusion that he had witnessed the 'striking' of the patient is not fair and reasonable as:3 - The findings rely too heavily on still images that represent three seconds in an incident which ran for significantly longer than that. Where this is the basis for a finding that [Mr Bennallack] was 'looking towards the Patient's head', that finding is inherently flawed. - The strikes in the second incident are significantly less obvious to an observer than the first incident and this does not seem to have been adequately considered by the decision maker. - The decision maker states that our member's glasses were not fogged up because he does not wipe his face until 20:50 hours. This is not correct, [Mr Bennallack] also wipes his face/glasses at approximately 20:48:53 which is a time proximate to the second incident and suggest his vision could have been impaired. The finding that he did not wipe his face immediately when he stood up at 20:48:30 is also objectively wrong on this basis. [14] With regard to the substantiation of Allegation One, Mr Bennallack says that even if the conduct was substantiated, it is not reasonably open to the decision-maker to determine that Mr Bennallack had engaged in corrupt conduct under s 15 of the CC Act. Mr Bennallack says that the basis of a finding that the substantiated conduct could amount to 'corrupt conduct' was not properly particularised in either the first or the second show cause notice. On that basis, Mr Bennallack says the disciplinary process was inherently unfair as he could not respond to the Allegations and that the process was not compliant with cls 9.3 and 9.4 of the Directive 05/23: Discipline. [15] With regard to the substantiation of Allegation Two, Mr Bennallack says that even if it can be found that he witnessed Incidents One and Two, a finding that he was required to intervene during those incidents is not fair because: - There is no general obligation on nurses to intervene in every situation of occupational violence that occurs that they witness. An assessment should still be made in relation to whether it was reasonable to expect them to intervene in the circumstances. - The Health Service has not pointed to any specific policy, procedure or legal obligation that demonstrates requiring [Mr Bennallack] to have intervened in Incident One or Incident Two was fair or reasonable in the circumstances. The obligation from clause 2.4 of the AHPRA Code of Conduct for Nurses referred to in the first show cause notice must be read and understood in its context. [16] Mr Bennallack submits that the act of failing to intervene during Incident One or Incident Two, in and of itself, is not enough for his conduct to be substantiated as misconduct under s 91(5) of the PS Act. Mr Bennallack says that the Respondent did not appropriately 2 Ibid [13]. 3 Ibid [14]. -- 7 of 25 -- 8 particularise or give him an opportunity to respond to what it was about this conduct that the Health Service alleged met the definition of misconduct as required by cls 9.3 and 9.4 of Directive 05/23: Discipline. [17] Mr Bennallack seeks that the decision be set aside and substituted with a decision that the Allegations are not substantiated. In the alternative, Mr Bennallack asks that the decision is set aside and substituted with an alternative disciplinary decision that should I find that Allegations One and Two are substantiated, that they only give rise to a contravention of s 91(1)(h) as set out in the first show cause notice. [18] Mr Bennallack requests that the Commission recommend that the Respondent impose a disciplinary outcome of a permanent reduction in classification and redeployment to a non-mental health Registered Nurse role within the Health Service. Was it fair and reasonable for Allegation One and Allegation Two to be substantiated on the material before the decision-maker? Was it necessary for the Respondent to conduct an 'extensive investigation'? [19] The Respondent has made submissions in support of its decision to commence a disciplinary process.4 It does not appear that Mr Bennallack is arguing that it was not fair and reasonable for the Respondent to commence a disciplinary process, rather, it is his submission that a full investigation should have been undertaken prior to commencing the disciplinary process. [20] The Respondent submits that an investigation was not required. The Respondent says that the decision-maker 'had access to clear primary evidence in the form of the CCTV and body-worn camera footage that depicted the conduct in question'. The Respondent notes that the 'comprehensive footage' included five separate pieces of body-worn camera footage, including audio, depicting the patient restraint from various angles in addition to the CCTV footage of the area. [21] The Respondent submits that Directive 01/24: Workplace Investigations provides a number of factors to be considered in deciding whether to commence a workplace investigation. These factors include whether there is sufficient evidence already available and how procedural fairness requirements will be met. [22] In his reply submissions, Mr Bennallack says that with regard to the Briginshaw principles,5 there is an onus on the decision-maker to undertake a rigorous evidence- based process in making decisions on the balance of probabilities.6 Mr Bennallack submits that the finding that he had witnessed the incidents was not fair and reasonable 4 Respondent's submissions filed in the Industrial Registry on 4 August 2025 [17]–[22]. 5 Briginshaw v Briginshaw [1938] 60 CLR 336. 6 Malcolm v State of Queensland (Queensland Health) [2024] QIRC 097 [189] ('Malcolm'). -- 8 of 25 -- 9 because its investigation was not comprehensive enough to 'attain the necessary standard of satisfaction' of those findings.7 [23] Mr Bennallack says that without gathering statements from potential witnesses, the decision-maker could not have properly complied with their obligations under Queensland Health Discipline Policy E10 and Directive 05/23: Discipline.8 In reply, the Respondent says that 'a further and relevant consideration before the delegate in determining whether witness statements would be appropriate, is that each employee involved in the restraint was subject to a discipline process at varying stages and to varying levels of severity, leading to questions of reliability and credibility of any statement that may have been obtained'.9 [24] In further final submissions following a hearing held for the purpose of viewing the CCTV and body-worn camera footage, Mr Bennallack reiterates his contention that an investigation should have been undertaken. He also notes that he had been instructed to keep the matter confidential and that this prevented him from gathering his own evidence. Mr Bennallack refers to the decision of Malcolm where it was said that the Appellant had been restricted from acting himself.10 [25] In reply to Mr Bennallack's submissions regarding the Briginshaw principle, the Respondent cites Directive 05/23: Discipline, which provides that the evidence that is required to establish that it is more probable than not that the alleged conduct occurred, and notes the strength of the evidence may vary according to the relevance of the evidence, the seriousness of the allegations, the likelihood of a particular event occurring and the gravity of the consequences.11 [26] The Respondent says that the available evidence depicts Mr Bennallack in close proximity to, and looking in the direction of, the patient when they were being repeatedly struck by Mr Leong. The Respondent notes that Mr Bennallack reached over the patient to retrieve the body-worn camera footage of Mr Leong, in close proximity to the time the patient was being struck. The Respondent says that the decision-maker was reasonably satisfied based on the available footage that Mr Bennallack had seen Mr Leong strike the patient, and that he failed to report the matter or to intervene.12 [27] The Respondent repeats that Mr Bennallack was afforded procedural fairness by way of an opportunity to respond in writing to the allegations, having had the benefit of viewing the footage. The Respondent notes that Mr Bennallack has been supported by his union throughout the process and says that there is no suggestion that the decision-maker has been affected by bias.13 7 Appellant's reply submissions filed in the Industrial Registry on 11 August 2025 [8]–[9]. 8 Ibid [20]-[22]; citing Malcolm. 9 Respondent's submissions in reply filed in the Industrial Registry on 25 August 2025 [9]. 10 Appellant's further submissions filed in the Industrial Registry on 3 November 2025 [2]–[3]. 11 Respondent's further written submissions filed in the Industrial Registry on 10 November 2025 [4]. 12 Ibid [5]. 13 Ibid [6]. -- 9 of 25 -- 10 [28] The Respondent notes that Mr Bennallack has not raised the submission he now makes, that the direction to keep the matter confidential has prevented him from gathering his own evidence. The Respondent says that Mr Bennallack has not advised what information or evidence he considers to be available to the Health Service that he would have sought to obtain. In any case, the Respondent notes that the direction issued to Mr Bennallack included the following, '[i]n the event you consider it necessary to contact a particular colleague in relation to this matter, you are directed to contact Ms Bugeja in the first instance, who will refer your request to me for consideration.'14 [29] The Respondent says that Mr Bennallack was not prevented in any way from gathering his own evidence. It says that the confidentiality directions within the correspondence were provided to protect the integrity of the discipline process and Mr Bennallack's privacy. The Respondent says that the show cause notice invited Mr Bennallack to provide any explanation of the matters he considered may be relevant and any supporting documentation and as outlined above, specifically contemplated the possible requirement for Mr Bennallack to engage others in obtaining his evidence or to contact others about the evidence. The Respondent confirms that no such request was made by Mr Bennallack.15 [30] I have had the benefit of watching the body-worn camera and CCTV footage and I agree that it provides a comprehensive view of what occurred during Incident One and Incident Two. The footage does not demonstrate how Mr Bennallack personally experienced the restraint. While this is information which could have been gleaned from a discussion or interview with Mr Bennallack, this did not occur. It was not a requirement of the process that Mr Bennallack be interviewed about what occurred. Procedural fairness required that the allegations be put to Mr Bennallack and that he have an opportunity to respond and provide his version of events. This occurred and Mr Bennallack had access to the footage and the particulars of the allegations. With the support of his union, Mr Bennallack provided a written response to the first show cause notice. [31] I am satisfied that there was no requirement for the Respondent to formally or further investigate the matters subject of the disciplinary process. Mr Bennallack was provided with the relevant material and had an opportunity to provide his version of events with the support of his union. [32] The absence of an investigation does not render the decision not fair or reasonable. This reason for appeal is dismissed. 14 Ibid [10]. 15 Ibid [11]. -- 10 of 25 -- 11 Was it open to the decision-maker to reject Mr Bennallack's version of events and find that he had witnessed Incidents One and Two? [33] Before establishing that Allegations One and Two were substantiated, it was necessary for the decision-maker to be satisfied that Mr Bennallack had noticed the incidents. This is clearly because Mr Bennallack could not have been expected to intervene in or report events which he was unaware of. As can be seen from the excerpts of the decision set out above from paragraphs [6]–[8], the decision-maker clearly turned their mind to this in considering both Allegations. [34] Mr Bennallack has said that he was sweating, his glasses were fogged up, he did not immediately wipe his face and that as a result, he could not see Mr Leong striking the patient. Mr Bennallack has also said that he was dealing with a previously sustained ankle injury. It is also the case that Mr Bennallack was tasked with administering an injection to the patient in the time immediately preceding the First Incident. [35] The Respondent submits that it was open to the decision-maker to find that Mr Bennallack's version of events with regard to his fogged glasses did not align with the events captured by the CCTV footage.16 The Respondent notes that the decision- maker specifically found it unlikely that Mr Bennallack had seen Mr Leong's body-worn camera fall to the ground and was able to lean over and pick it up, however he did not see Mr Leong strike the patient immediately before the camera fell to the ground three seconds earlier. [36] Mr Bennallack says that the finding that he had witnessed Incident Two was not fair and reasonable as that finding relied too heavily on still images representing three-seconds of a much longer incident. Mr Bennallack says that the finding that he was looking toward the patient's head is inherently flawed. [37] The Respondent says that the decision-maker considered all the CCTV and body-worn camera footage available to them. That finding was not made based solely on still images. The Respondent says that the still images were provided to Mr Bennallack for the purpose of assisting him to understand how the decision-maker formed their view on the matter.17 [38] The Respondent submits that it is unclear why Mr Bennallack contends that the finding that he was looking towards the patient's head is 'inherently flawed'. The Respondent says that the footage clearly depicts, from multiple angles, that the Appellant was looking towards the patient at the time the patient was struck.18 [39] Mr Bennallack says that the strikes in Incident Two are significantly less obvious to an observer and that this has not been properly considered by the decision-maker. The Respondent says that the question before the decision-maker was whether the strikes 16 Ibid [27]. 17 Ibid [29]. 18 Ibid [30]. -- 11 of 25 -- 12 in Incident Two were obvious to Mr Bennallack. The Respondent notes that it is evident from the footage that Mr Bennallack was in close proximity to, and looking in the direction of, the patient when he was repeatedly struck.19 [40] Mr Bennallack submits that the decision-maker primarily relied upon the footage when making the decision. Mr Bennallack submits that too much emphasis has been placed on the decision-maker's own perceptions of the footage.20 [41] Mr Bennallack submits that the decision-maker has not given appropriate consideration to his evidence that he was 'not fully aware of the interactions occurring between security personnel and the patient' because he was focused on his role in the restraint and on his injured ankle.21 Mr Bennallack says that the decision-maker chose to focus only on his evidence that he did not notice the striking of the patient due to his being sweaty and his glasses fogging up. The decision-maker determined that because he picked the camera up off the ground, he must not have been so sweaty his vision was impaired.22 [42] Mr Bennallack then turns to Incident Two. He says that the decision-maker chose to focus on a finding that Mr Bennallack was looking towards the patient's head for a period of three-seconds. While the Respondent accepts that Mr Bennallack may have been sweaty with fogged up glasses at this point, it concluded that this was not a plausible explanation as Mr Bennallack did not wipe his face immediately when he stood up. [43] Mr Bennallack says that it was incumbent upon the decision-maker to investigate his conduct in order to corroborate or cross-check evidence. Rather than relying solely on their perceptions of the footage, Mr Bennallack says that the decision-maker should have asked other staff who were present if Mr Bennallack's response was credible, for example by asking whether anyone noticed his glasses were fogging up.23 [44] Mr Bennallack repeats his submission that it is wrong to find that he did not wipe his face until 20:50 hours and says that he also wipes his face at 20:48:53, a time proximate to Incident Two, suggesting that his vision could have been impaired.24 [45] Regarding Incident Two, Mr Bennallack repeats his concern that the findings rely heavily on still images representing three seconds in an incident which lasted for longer than that. Mr Bennallack submits that on an objective viewing of the footage, during Incident Two, Mr Bennallack is moving around and that his attention is not always entirely fixed on the restraint.25 19 Ibid [32]. 20 Citing Geary v State of Queensland (Queensland Health) [2024] QIRC 250. 21 Appellant's reply submissions (n 7) [11]. 22 Ibid [12]. 23 Ibid [15]. 24 Ibid [16]. 25 Ibid [17]. -- 12 of 25 -- 13 [46] Mr Bennallack says that the decision-maker did not consider his explanation that he was 'not fully aware of the interaction' and that his 'primary focus was on ensuring the safe administration of the IM injection – particularly monitoring the location of the needle to prevent needlestick injury, as well as positioning himself in a way that adhered to MAYBO techniques while minimizing strain on his ankle'.26 [47] Mr Bennallack says that restraints such as the one that is recorded in the relevant CCTV footage generally do not occur without there needing to be physical contact between the SRO and patient.27 Mr Bennallack says that the finding is that he should have realised that the SRO's actions were inappropriate during a time he says he was focused closely on what was going on around him.28 Mr Bennallack submits that this is a 'significant presumptive leap' for a matter where the allegations are as serious as those being put to him. On that basis, the findings arise from an inappropriate application of the Briginshaw standard.29 [48] Mr Bennallack suggests that the decision-maker may have come to the process with a pre-determined view that Mr Bennallack must have seen the incidents and then only looked for evidence which justified this view. [49] The Respondent says that this matter differs from a matter such as Geary, as in that matter, the decision-maker only had access to CCTV footage without sound.30 The Respondent repeats its previous submission that that the footage available was comprehensive, included five separate pieces of body-worn camera footage, including audio, and the CCTV footage of the area. [50] The Respondent says that the footage provided an 'unbiased depiction' of the events which could not have been obtained via witness statements. The Respondent says that the decision-maker did not make any assertions about what had happened as there were no gaps in the available information. The Respondent says that the available information demonstrates: a. The patient was struck multiple times directly in the face, immediately in the presence of the Appellant. b. While the patient was being struck, the Appellant noticed that Mr Leong's BWC fell off and reached over the patient towards Mr Leong who was striking the patient to retrieve Mr Leong's BWC. c. Information gathered from the Nurse Unit Manager and Executive on-call confirmed that the Appellant did not report the matter, in writing or verbally. 26 Ibid [18]. 27 Ibid. 28 Ibid. 29 Ibid. 30 Geary cited by the Appellant in his reply submissions (n 7) [10]. -- 13 of 25 -- 14 [51] The Respondent says that there was sufficient information available to the decision- maker to support that Mr Bennallack was sufficiently aware of other aspects of the restraint occurring around him. The Respondent also notes that the sound of the strikes delivered by Mr Leong can clearly be made out on the body-worn camera footage audio.31 [52] In final submissions following the hearing to view the footage, Mr Bennallack says that simply viewing the footage is not sufficient to make a finding that he actually witnessed the incidents in circumstances where the Briginshaw principle applies. Mr Bennallack says that the evidence required to make the finding was of a higher standard than the evidence the decision-maker had before them and that the required state of satisfaction could not fairly and reasonably have been reached.32 [53] In its final submissions, the Respondent notes Mr Bennallack's contention throughout his submissions and his evidence before the Commission that his vision was impacted due to sweat and the fogging of his glasses. While Mr Bennallack asserts that his vision was impaired and this provided a reasonable excuse for not seeing Mr Leong strike the patient, the Respondent notes that Mr Bennallack has also described being able to administer an intra-muscular injection to the patient. Administering the injection required Mr Bennallack to remove a small needle cap and direct the injection to the correct area of the upper outer quadrant of the patient's glute shortly before he alleges his vision was impacted. [54] The Respondent also notes Mr Bennallack's evidence that he saw the red light of the body-worn camera of Mr Leong which had fallen to the floor. The Respondent says that both of these recollections from Mr Bennallack support the decision-maker's finding that Mr Bennallack's explanation that his vision was impaired due to the sweat and fogging of his glasses to such an extent that he could not see a person being repeatedly struck in the head right in front of him to be implausible, if not dishonest.33 [55] In response to the submission that a properly performed act of restraint can look similar to an incident of violence and can be missed, the Respondent says that there is no acceptable restraint which involves repeatedly striking a patient in the head. The Respondent says that this is not an instance of a debatable variation from acceptable restraint methodology, rather it is a clear and obvious departure from anything resembling an acceptable restraint.34 [56] I have reviewed all available body-worn camera and CCTV footage. I have had regard to Mr Bennallack's version of events. I accept that given the time of year, Mr Bennallack may have been sweaty and that his glasses may have fogged up, either before, after or during the incidents in question. I accept that Mr Bennallack was suffering from an ankle 31 Respondent's submissions in reply (n 9) [11]. 32 Appellant's further submissions (n 10) [4]. 33 Respondent's further submissions (n 11) [19]. 34 Ibid [21]. -- 14 of 25 -- 15 injury which was causing him some pain. I accept that prior to Incident One and Two, Mr Bennallack was focused on administering an injection to the patient's glute area. I accept that at times Mr Bennallack was standing up, moving around and not always looking in the direction of the patient. [57] However, when considering all of those matters alongside the evidence seen on the various available footage showing the scene from different angles, including audio, I find it improbable that Mr Bennallack did not notice, witness and/or was otherwise not aware of the strikes on the patient described as Incident One and Incident Two. Mr Bennallack was in close proximity throughout both Incidents. Mr Bennallack heard one of the SROs verbally intervening. The strikes to the patient's head are clearly audible on the body- worn camera footage. The SRO directly next to Mr Bennallack also appears to attempt to physically intervene. Mr Bennallack may have had fogged up glasses and/or been focused on other matters such as his ankle, however, he was able to notice Mr Leong's body-worn camera fall to the ground and to reach across the patient to remove it. The restraint was undoubtedly busy and stressful with many 'moving parts', however I find that it was open to the decision-maker to reject Mr Bennallack's submission that he did not notice Incident One or Incident Two. [58] While Mr Bennallack was provided with some still images taken from the body-worn camera footage as attachments to the show cause notice, I do not accept his submission that the decision-maker only considered those still images and did not have regard to the totality of the evidence available. [59] The footage comprehensively shows what occurred during the sequence of events and time period surrounding Incident One and Incident Two. While Mr Bennallack suggests that the decision-maker could have sought statements from others present during the incidents to corroborate his submissions, I note that ultimately, only Mr Bennallack can give a statement as to what he saw. The task before the decision-maker was to consider Mr Bennallack's response alongside the other available evidence and to determine if Mr Bennallack's response should be accepted. [60] I do not accept Mr Bennallack's submission that he was prevented from gathering his own evidence. Where the decision-maker was clearly satisfied that the decision could be made on the basis of the available evidence, it was open to Mr Bennallack to seek other evidence or statements to support his version of events. Mr Bennallack has had the support of his union throughout the process, and I am satisfied that advice was available to him as to how to go about this in the event he genuinely believed that the other employees present could provide evidence to support him. [61] The decision-maker was required to be satisfied on the balance of probabilities that Mr Bennallack had noticed the strikes to the patient described as Incident One and Incident Two. The allegations against Mr Bennallack are serious and if substantiated, may give rise to grave consequences for him. In my view, it was open to the decision- maker to consider that the body-worn camera footage providing a close-up view of the -- 15 of 25 -- 16 incidents from various angles, the audio of that footage and the CCTV footage providing an overview of the scene was strong, directly relevant evidence. [62] There is no evidence before me to support Mr Bennallack's suggestion that the decision- maker may have come to the process with a pre-determined view that he had seen the incidents. [63] It was open to the decision-maker to determine that on the balance of probabilities, taking into account Briginshaw principles, that Mr Bennallack noticed both incidents. [64] Having determined that Mr Bennallack had noticed the incidents, it was open to the decision-maker to substantiate both Allegations. This is because on Mr Bennallack's own version of events, he did not report the conduct of the SRO, and he did not intervene during the incidents. Are the grounds for discipline identified by the decision-maker fair and reasonable? [65] The Respondent says that it was open to the decision-maker to find that the substantiated Allegations give rise to the grounds for discipline identified and therefore should not be overturned. [66] Mr Bennallack argues that even if the Allegations are substantiated, it was not fair and reasonable for the decision-maker to arrive at the grounds for discipline identified in the decision. Mr Bennallack makes submissions to the effect that he had a reasonable excuse for not reporting the event and that the failure to report does not amount to corrupt conduct. Mr Bennallack also says that there was no requirement for him to intervene in the circumstances and that the failure to intervene does not amount to misconduct. Allegation One – the failure to report the conduct of the Safety and Response Officer [67] Mr Bennallack says that even if Allegation One is substantiated, it was not reasonably open to the decision-maker to find that this amounted to corrupt conduct. The Respondent says that s 15 of the CC Act provides a definition of corrupt conduct including that neglect, failure and inaction constitute misconduct.35 [68] The Respondent submits that it was open and reasonable for the decision-maker to find that Mr Bennallack's neglect in reporting corrupt conduct in the form of Mr Leong striking the patient, amounted to conduct which was not honest and impartial and that this involved a beach of the trust placed in Mr Bennallack's role as a Registered Nurse with the Health Service.36 [69] While Mr Bennallack says that the suggestion that the alleged conduct amounted to corrupt conduct was not particularised in the show cause notice, the Respondent says 35 Ibid [40]. 36 Ibid [41]. -- 16 of 25 -- 17 Mr Bennallack's show cause response disagreed that he had engaged in corrupt conduct. This suggests he was aware that the decision-maker was giving consideration to whether his conduct was corrupt conduct.37 [70] Mr Bennallack submits that to find that Allegation One amounts to corrupt conduct, each of the requirements of s 15(1)(a), (b) and (c) of the CC Act must be made out:38 28. It is conceded that a failure to report is an omission that can be relevant conduct for the purposes of section 15 of the CC Act and that conduct could have adversely impacted on the performance of a function of public administration as required by section 15(1)(a). Further, if substantiated it is conduct that could arguably be a disciplinary breach providing reasonable grounds for terminating the person's services as required by section 15(1)(c)(ii). 29. However, the conduct which is the subject of Allegation one is not in and of itself conduct which meets any of the requirements of subsection 15(1)(b), being: “(b) results, or could result, directly or indirectly, in the performance of functions or the exercise of powers mentioned in paragraph (a) in a way that – (i) is not honest or is not impartial; or (ii) involves a breach of the trust placed in a person holding an appointment, either knowingly or recklessly; or (iii) involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment” [71] Mr Bennallack says that despite what is contended in written submissions in this Appeal, there is no reasoning set out in the decision which finds that Mr Bennallack's failure to report was dishonest or a breach of trust placed in him either knowingly or recklessly. Mr Bennallack says that his denial that his conduct amounted to corrupt conduct should not be treated as evidence that he agrees the conduct could amount to corrupt conduct. [72] Mr Bennallack says that at its highest, the conduct described in Allegation One could only contravene s 91(1)(h) of the PS Act and that no more serious disciplinary finding is open on the alleged facts.39 [73] In reply, the Respondent submits that Mr Bennallack has provided no reasoning to dispute that the conduct involved a breach of trust placed on a person holding an appointment, either knowingly or recklessly.40 [74] While acknowledging that the decision does not expressly refer to s 15(1)(b) of the CC Act in describing the grounds for discipline, the Respondent says that the decision-maker did set out that Mr Bennallack had demonstrated an understanding of an obligation to report inappropriate conduct and that he had not made any report regarding 37 Ibid [42]. 38 Appellant's reply submissions (n 7) [28]–[29]. 39 Ibid [33]. 40 Respondent's submissions in reply (n 9) [16]. -- 17 of 25 -- 18 the restraint. The Respondent says that this is sufficient to amount to a breach of trust placed on a person holding an appointment.41 [75] In his final reply submissions following the hearing to watch the footage, Mr Bennallack says that even if it is found that he did witness the incident, a failure to report should not be misconduct.42 This is because Mr Bennallack thought the report had been completed by the nurse in charge, there were a number of other staff present, each of whom did not report the conduct, and it was a particularly stressful situation in which an SRO had lost his temper and an intervention could have potentially made the situation worse.43 Conclusion re: discipline finding for Allegation 1 [76] In my view, Mr Bennallack's conduct in not reporting the conduct of the SRO who struck the patient does not rise to the seriousness of a finding that he has engaged in corrupt conduct. [77] I accept Mr Bennallack's submission that he believed that the nurse-in-charge would provide a report on the restraint. In his submissions, Mr Bennallack maintains that he did not witness the incident. However, even if he had witnessed the incident, I accept that Mr Bennallack thought that the nurse-in-charge would also be responsible for the formal reporting of the restraint. I am not satisfied that the available evidence is such that it can establish on the balance of probabilities that Mr Bennallack made a deliberate choice to conceal the incident or to breach any reporting obligation for dishonest or corrupt purposes. On that basis, I find that it would not be fair and reasonable to determine that, pursuant to s 15(1)(b) of the CC Act, Mr Bennallack had acted dishonestly, that he had knowingly or recklessly breached the trust placed in him, or that he misused information available to him. [78] However, Mr Bennallack's submissions acknowledge that where one is aware of conduct such as that displayed by the SRO during the incidents, this should be reported. Having found on the balance of probabilities that Mr Bennallack was aware of the conduct, it is fair and reasonable for the decision-maker to find that he should have reported that conduct to an appropriate person. [79] As Mr Bennallack acknowledges, if aware of the conduct, he should have taken steps to report it. Pursuant to the Code of Conduct, Mr Bennallack had an obligation to report suspected wrongdoing, including conduct not consistent with the Code. In my view, the appropriate ground for discipline arising from Allegation One is that Mr Bennallack has contravened, without reasonable excuse, a relevant standard of conduct, being the Code of Conduct. I note that this was an alternative ground for discipline put forward in the first show cause notice and therefore I am satisfied that it was in the contemplation 41 Ibid [17]. 42 Citing Nield. 43 Appellant's further submissions (n 10) [7]. -- 18 of 25 -- 19 of the decision-maker and that Mr Bennallack has had an opportunity to consider that ground for discipline when preparing his show cause notice. [80] The finding that Allegation One gives rise to a ground for discipline pursuant to s 91(1)(g) is set aside. I am substituting that finding with a different finding. Allegation One as substantiated gives rise to a ground for discipline pursuant to s 91(1)(h). [81] For completeness, I note that the parties both made submissions as to whether the show cause notice had properly put Mr Bennallack on notice as to each of the suggested grounds for discipline and the reasons why the decision-maker had identified those grounds. As I have determined to substitute the disciplinary finding for other reasons, I will not further address those matters in these reasons for decision. Allegation 2 – the failure to intervene [82] Mr Bennallack says that even if the allegations can be substantiated, there is no general obligation on nurses to intervene in every situation of occupational violence. Mr Bennallack says that the Respondent has not been able to point to any specific policy, procedure or legal obligation requiring Mr Bennallack to intervene in either Incident. [83] The Respondent acknowledges that employees should assess and manage their own safety in the workplace as far as reasonably practicable. The Respondent says that if he thought it was not safe to physically intervene, it would have been possible for Mr Bennallack to intervene verbally to instruct Mr Leong to stop punching the patient in the head or to attempt to de-escalate Mr Leong.44 [84] The Respondent says that the responsibility to ensure the safety, health and welfare of others in the workplace is not limited to nursing staff but applies to all employees of the Health Service as prescribed in the Code of Conduct for the Queensland Public Service.45 [85] The Respondent submits that it is reasonable to expect that any individual confronted with a situation such as the striking of a vulnerable patient would attempt to take any steps to prevent the conduct continuing or that they would report their concerns. The Respondent says that it was open to the decision-maker to find that an employee whose role requires them to work with agitated and vulnerable patients on a regular basis would be more likely equipped to respond to situations such as this given his training and experience.46 [86] The Respondent repeats that there would have been no risk to Mr Bennallack or the patient by verbally intervening. The Respondent also says that Mr Bennallack has not 44 Ibid [35]. 45 Ibid [36]. 46 Ibid [37]. -- 19 of 25 -- 20 provided any justification as to why it would have been detrimental to his own health or that of the patient to intervene verbally.47 [87] Mr Bennallack maintains that there was no requirement for him to intervene in the circumstances. With regard to cl 2.4 of the AHPRA Code of Conduct, Mr Bennallack says that the requirement is only for intervention where that intervention is needed to protect a person's safety. Mr Bennallack says that no guidance is given as to what an intervention might look like and what should be done where the intervention may also place the person asking for the intervention at risk.48 [88] Mr Bennallack argues that intervening where a third-party, the SRO, had lost his temper and intervention may have put both himself and the patient at risk would not be practicing safely for the purposes of the AHPRA Code of Conduct.49 [89] Mr Bennallack has said that the act of failing to intervene is not, on its own, enough to constitute a finding of misconduct. Mr Bennallack also says that the Respondent did not properly explain in the first show cause notice what it was about the conduct which was alleged to be misconduct. [90] The Respondent says that in his show cause response, Mr Bennallack denied that he had engaged in misconduct and that this suggests he was aware that the Respondent was considering whether the alleged conduct could be misconduct.50 [91] With reference to the discussion of misconduct in Coleman, the Respondent refers to Deputy President Merrell's finding that misconduct as contained in the PS Act contemplates 'a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee'.51 [92] The Respondent says that Mr Bennallack witnessed the inappropriate conduct of another employee and chose not to intervene in any manner to ensure the safety and welfare of a vulnerable patient. In circumstances where the actions had a reasonably predictable impact on the patient, the Respondent says that this can be reasonably considered a deliberate departure from accepted standards and serious negligence to the point of indifference. [93] The Respondent submits that Mr Bennallack is employed in a role which is responsible for the delivery of safe clinical care to some of the community's most vulnerable patients. The Respondent says that a significant contributing factor in the vulnerability of the cohort is difficulties they face in advocating for themselves and navigating the systems 47 Respondent's submissions in reply (n 9) [13]–[14]. 48 Ibid [37]. 49 Ibid [38]. 50 Ibid [44]. 51 Ibid [46]; Coleman v State of Queensland (Department of Education) [2020] QIRC 32. -- 20 of 25 -- 21 required to do so. The Respondent argues that the failure to intervene in the striking of a vulnerable consumer, in circumstance where it says Mr Bennallack was aware the patient was being struck in the head and any attempt to intervene could have prevented or minimised harm to the patient, rises higher than a breach of a duty or an obligation. The Respondent says that the failure to intervene falls significantly short of a standard of care that a reasonable person in a similar circumstance would have exercised and that this represents a significant indifference to the patient's safety and wellbeing.52 [94] Mr Bennallack says that to form the basis of a finding of misconduct, there had to be something more than a failure to intervene. The failure to intervene must also have been a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee. Mr Bennallack says: The Decision Maker has put forward no justification either in the NTSC1 or the Decision as to how it could be concluded that a failure to intervene met this standard other than that the Appellant must have known the behaviour of the SRO was inappropriate. Even if this was the case, there were a number of other health professionals present at the incident – none of those people took significantly more or less steps than the Appellant to intervene. This suggests that not intervening was a normal reaction in a stressful situation such as a restraint of a patient. It is hard to see how something which was a common or normal reaction could be found to meet the definition of misconduct. [95] With reference to Van Berkel,53 Mr Bennallack says that the standard required of an employee undergoing discipline is not perfection. Mr Bennallack says that while in a perfect world, he would have intervened if he had seen the Incidents, a finding that a failure to intervene in a highly stressful and challenging situation like Incident One and Incident Two constitutes misconduct must be found to be unfair and unreasonable. [96] In reply, the Respondent submits that the fact that others may have behaved in the same way is not an acceptable defence for Mr Bennallack's own behaviour. The Respondent also notes that each employee involved in the restraint was subject to a discipline process due to concerns about their involvement in the restraint.54 [97] The Respondent acknowledges that an employee's reaction does not need to be perfect to be considered reasonable or appropriate, however says that the difference in this matter is 'the complete indifference for the safety of the patient shown by the Appellant during the incident, in which the Appellant has demonstrated no attempts to intervene, physically or verbally'.55 [98] The Respondent says that Mr Bennallack's submission that intervening could have made the situation worse is 'misguided and alarming' as it appears to support that 52 Respondent's further submissions (n 11) [15]. 53 Van Berkel v State of Queensland (Queensland Health) [2023] QIRC 264. 54 Respondent's submissions in reply (n 9) [18]. 55 Ibid [20]. -- 21 of 25 -- 22 Mr Bennallack did not intervene by choice and 'raises a troubling view on the part of the Appellant that leaving a patient to continue to be struck in the face and head by another staff member was an appropriate response'.56 Conclusion re: Disciplinary finding for Allegation Two [99] In his submissions in this matter, Mr Bennallack has maintained that he did not witness the conduct of the SRO. While I have upheld the decision-maker's finding that on the balance of probabilities, Mr Bennallack did witness the conduct, it is the case that Mr Bennallack's submissions in relation to this point are based on what he may have done if he had witnessed the conduct, what the reasonable expectation of him may have been, and speculation as to the what the impact of any attempt to intervene may have been. Mr Bennallack also points to the actions of others in the situation and says that his response was no different to some of the others involved in the restraint. [100] For the decision-maker to arrive at a finding of misconduct in these circumstances, it is necessary to be satisfied on the balance of probabilities that Mr Bennallack was negligent, indifferent to the safety of the patient or that he deliberately chose to depart from the conduct expected of a registered nurse in this situation. In my view, the available evidence is not sufficient that it is reasonable to make a finding of misconduct pursuant to s 91(1)(b) of the PS Act. [101] Firstly, Mr Bennallack did participate in the restraint, including administering an injection to the patient and there is no suggestion, other than the failure to intervene, that his own involvement or personal conduct in relation to the physical restraint or provision of care was not appropriate and did not demonstrate care for the patient. Secondly, assuming on the balance of probabilities that Mr Bennallack did witness the conduct of the SRO, the body-worn camera footage demonstrates that someone did verbally intervene to the extent of repeatedly saying Mr Leong's name. Mr Bennallack recalls that verbal intervention. The body-worn camera footage also demonstrates that another SRO, who was closer to the patient and Mr Leong, reached across to attempt to swat away or push back Mr Leong's arm as he is striking the patient. In those circumstances, it is not as though no one was intervening or addressing Mr Leong's conduct during the incident. [102] I accept that the Respondent has an expectation that Mr Bennallack would speak up or attempt to intervene in circumstances where he is charged with the care of a vulnerable patient. I also note Mr Bennallack's submissions regarding there being no mandatory requirement to intervene and that there will be circumstances where it is unsafe to intervene in a situation of occupational violence. [103] Having had regard to the totality of the evidence, I do not think it would have been possible or appropriate for Mr Bennallack to physically intervene given where he was 56 Ibid [16]. -- 22 of 25 -- 23 situated throughout both Incident One and Two. However, I do not think it is reasonable for Mr Bennallack to rely on a concern for his personal safety or a fear of escalating matters if he had verbally intervened. I understand that watching the footage after the event provides a very different perspective to the reality for the employees and the patient involved in the restraint. The situation was clearly very stressful and heightened. However, I accept that situations such as these do occur and I accept the Respondent's submissions about its expectations of those working with vulnerable mental health patients being equipped to respond appropriately. It would have been appropriate for Mr Bennallack to speak up, even in a manner similar to the other employee who intervened by saying Mr Leong's name several times and at one point saying words to the effect that people should settle down. [104] In circumstances where other employees had verbally and physically made some attempt to intervene in the situation, I find it possible that Mr Bennallack may have believed there was no utility in adding his voice to the situation. The two incidents occurred over a period of only a few seconds. With hindsight, everyone involved may have reacted differently in the circumstances, however I do not accept that Mr Bennallack's conduct in not intervening rises to the level of misconduct. Applying Briginshaw principles, I do not accept that the evidence is sufficient to establish on the balance of probabilities that Mr Bennallack's conduct was misconduct. Applying the authorities considering misconduct in the context of s 91(1)(b), I do not accept that the evidence is sufficient to demonstrate that Mr Bennallack made a deliberate choice to depart from accepted conduct, or that he was indifferent to the safety of the patient, or that he abused the privilege and confidence placed in him as a Registered Nurse. [105] I accept that it was reasonable to expect Mr Bennallack to intervene, even in circumstances where someone else had attempted verbal intervention. The evidence demonstrates that he did not. While an employee's conduct need not be perfect, I find it is reasonable to expect that there may be some attempt to intervene. For that reason, I find that the appropriate finding would be that pursuant to s 91(1)(h), Mr Bennallack has contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. [106] The finding that a ground for discipline arises pursuant to s 91(1)(b) is set aside and is substituted with a finding that a ground for discipline arises pursuant to s 91(1)(h). Other matters [107] Mr Bennallack accepts that each individual discipline process needs to be considered on its own individual and particular facts, however, he says that where two employees are addressing the same or substantially similar allegations arising from the same factual matrix, in order for the outcome to be fair and reasonable, it is relevant to know whether the matters are being treated in the same way by the Health Service. -- 23 of 25 -- 24 [108] Mr Bennallack says that if the same allegations are substantiated against another employee but are not found to be misconduct, in the majority of cases this would not be fair and reasonable. Mr Bennallack says that before the Commission can find that the outcome was fair and reasonable, it should satisfy itself that each disciplinary process is being treated in a consistent manner. [109] In reply, the Respondent repeats that disciplinary processes for employees involved in the same incident are not relevant to the current matter. The Respondent says that the evidence must be considered on a case-by-case basis and have regard to matters such as the individual's role and responsibility in the Health Service, their involvement in the restraint, and any explanation they provide. The Respondent says that these differences may result in a different discipline finding between individuals involved. [110] The matter before me in this appeal is whether the decision was fair and reasonable. I am focused on the circumstances as they relate to Mr Bennallack and I am concerned as to whether the decision was fair and reasonable as it relates to Mr Bennallack's conduct in the role in which he is employed. I do not accept that a different disciplinary finding in relation to another employee would lead to a conclusion that this decision was not fair and reasonable. In any case, Mr Bennallack's submission to this effect is speculative given he is unable to point to a differential outcome for an employee involved in the incident. [111] I also note that Mr Bennallack's concern here appears to be that the same conduct may not have been found to be corrupt conduct or misconduct in a different disciplinary process for a different employee. I am setting aside those findings in Mr Bennallack's case and substituting them with grounds for discipline pursuant to s 91(1)(h) of the PS Act. Conclusion [112] It was fair and reasonable for the decision-maker to substantiate Allegations One and Two. [113] For the reasons set out from paragraphs [67]–[81] of these reasons for decision, the ground for discipline identified by the decision-maker is set aside and substituted with a decision that the ground for discipline arising from Allegation One arises under s 91(1)(h) of the PS Act. [114] For the reasons set out from paragraphs [82]–[106] of these reasons for decision, the ground for discipline identified by the decision-maker is set aside and substituted with a decision that the ground for discipline arising from Allegation Two arises under s 91(1)(h) of the PS Act. [115] I decline to make a recommendation as to the appropriate disciplinary action to be taken against Mr Bennallack. This is a matter for the decision-maker to determine following -- 24 of 25 -- 25 the show cause process. There will be other avenues available to Mr Bennallack should he disagree with any decision on disciplinary action. [116] The second show cause notice is set aside. The matter is returned to the decision-maker with a copy of this decision. A fresh show cause notice reflecting the substituted disciplinary findings set out above is to be issued within 21-days of release of this decision. Orders [117] Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), I make the following orders: 1. The decision appealed against is set aside in part. 2. The decision that Allegation 1 and Allegation 2 are substantiated is confirmed. 3. The ground for discipline relating to Allegation 1 is substituted with a decision that the ground for discipline arises under s 91(1)(h) of the PS Act. 4. The ground for discipline relating to Allegation 2 is substituted with a decision that the ground for discipline arises under s 91(1)(h) of the PS Act. 5. The second show cause notice is set aside. A fresh show cause notice that reflects these reasons for decision is to be issued within 21-days of the release of this decision. -- 25 of 25 --